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WEEHAWKEN PLANNING BOARD HEARING
OCTOBER 28, 1999
FULL TRANSCRIPT
PAGES 51 TO 100

Michael Friedman
Environmental Witness Direct Testimony
Cross-Examination by James Segreto

Below is the transcript from the Weehawken Planning Board Hearing on
October 28, 199
9.

This hearing was conducted at the Weehawken High School. For the record, the FWW staged a big rally to protest the Roseland development application. Over 80 citizens attended the rally at Hamilton Park. After the rally, we marched to the high school and held a five minute demonstration to express our objections.

This html document follows the format of the official transcript. The transcript format has 25 lines per page. Each page is numbered. Because the transcript is so long, the file has been broken down into 4 different web pages.

Jump to 10/28/99 pages 1 to 50
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51
1 parameters in relatively short order.
2 Groundwater, the groundwater on this site
3 is approximately six-and-a-half to eight feet
4 below grade, below surface elevation.
5 MR. SEGRETO: I am going to renew
6 my objection.
7 He is now getting into the field of
8 hydrology, and his bachelor's degree and
9 master's degree in biology has nothing to
10 do with hydrology.
11 They have engineers -- professional
12 engineers who have the expertise to talk
13 about groundwater, groundwater phenomenon.
14 One of the things about groundwater
15 is that it's belowground, which means he
16 can't be testifying about his visual
17 observation of it, and he is, obviously,
18 talking derivatively about something that's
19 -- some engineers have told him.
20 MR. DUNN: He is allowed to do
21 that as an expert witness, Mr. Segreto.
22 MR. SEGRETO: No, he is not. No,
23 he is not.
24 MR. DUNN: Mr. Kienz, do you
25 have anything to say?
Friedman - Direct - Kienz
52
1 MR. KIENZ: Absolutely.
2 He has been qualified as an
3 environmental scientist. He has a degree
4 in biology.
5 When he was qualified he indicated
6 he had vast experience in preparing these
7 types of statements.
8 He is a witness, and to follow Mr.
9 Segreto's line of reasoning, we would
10 probably have to show up with -- who knows
11 -- how many different experts to testify to
12 the little corners of an Environmental
13 Impact Statement, which is not what this is
14 about.
15 This is to provide a background
16 piece of information in accordance with
17 your ordinance requirements.
18 MR. SEGRETO: I assume that means
19 my objection is overruled by the Chair?
20 MR. DUNN: Yes. Yes, it does,
21 Mr. Segreto.
22 The Chair --
23 MR. SEGRETO: So that the protocol
24 will be that when counsel makes a ruling,
25 and in the absence of anything from the
Friedman - Direct - Kienz
53
1 Chair, for example, that would mean, it
2 seems to me, can we agree, the Chair agrees
3 with what counsel has said?
4 MR. DUNN: That's correct.
5 MR. GOULD: Yes, we had some
6 rules that we read at the last meeting,
7 which said that I would confer with counsel
8 before making any decisions, and if counsel
9 makes such a decision, that will be the
10 decision of the board.
11 MR. SEGRETO: I have no problem, as
12 long as we understand that the record
13 reflects that counsel has indicated that
14 the objection is not well-taken unless the
15 Chair says to the contrary, that
16 constitutes a ruling of the Chair that my
17 objection is overruled?
18 MR. GOULD: Yes.
19 MR. DUNN: That's fine. It's so
20 stipulated.
21 THE WITNESS: I think it would be
22 important for the members of the board and
23 members of the public, who are here this
24 evening to understand that as president of
25 EcolSciences and as principal author of the
Friedman - Direct - Kienz
54
1 report, I was not the sole author of the
2 report. The report contains bibliographies
3 of other individuals that were on the site.
4 Through my testimony I indicated we
5 took many samples, we had equipment on the
6 site.
7 The specific fact, by way of
8 example, that the water -- that the
9 groundwater was six-and-a-half to eight
10 feet below the surface was seen by members
11 of my staff during the course of the
12 conduct of this particular endeavor.
13 Q And it's your responsibility to
14 oversee their work. Is that correct?
15 A Absolutely, and review their work.
16 So as I was saying, the groundwater on this
17 site approximates to be six-and-a-half to eight
18 feet below grade. It's highly influenced, and it
19 represents, essentially, Hudson River water, and
20 that conclusion is derived from an analysis,
21 historical, a review of historical groundwater
22 data on the site, which reflects salinity of that
23 water in comparison of that salinity, salinity as
24 in the Hudson River.
25 Let me move to surface waters.
Friedman - Direct - Kienz
55
1 An observation there are no free-flowing
2 waters on this property. There are no streams.
3 There are no rivers. There are no rivulets. The
4 surface water associated with this site is simply
5 but the Hudson River.
6 I spoke briefly before about the
7 vegetation, and, I think, suffice it to say there
8 are no mature stands of vegetation on the portions
9 of the property that will ultimately -- that are
10 the subject of the development of this site.
11 Q How about wildlife, Michael?
12 A Wildlife, in similar fashion, there
13 are no substantial -- there is no substantial
14 evidence of wildlife on the property.
15 There is certainly a healthy invertebrate
16 community along the shoreline. That invertebrate
17 community was documented by specialists in my
18 office who conducted site investigations of the
19 property.
20 Certainly there are birds that utilize the
21 site, but there are no substantial stands of
22 wildlife along this portion of Weehawken.
23 Q Now, what are -- the requirement
24 under the Weehawken ordinance is also that you
25 discuss historical sites.
Friedman - Direct - Kienz
56
1 You spent some time on the history of the
2 site, and that's currently up on the screen, is it
3 not?
4 A Yes. As one may well imagine, there
5 are no documented findings of cultural or
6 archaeological resources on the site.
7 As I testified to earlier and as we saw
8 from our investigative information of the site,
9 the vast majority of the site has been filled
10 since the 1900s, so the site, rather than
11 constituting historical or archaeological
12 artifacts, consists of fill materials from various
13 unknown sources.
14 One of the ordinance requirements is an
15 identification of sensitive environments --
16 environmental features. Let me just run through
17 those in short order.
18 The answer to most of these features is,
19 no, there are no wetland areas on the site. There
20 are no critical wildlife habitats on the site.
21 There are no mature, natural vegetative features
22 on the site, no aquifer recharge areas on the
23 site.
24 There is not a high water table. There are
25 no bedrock outcrops. There are steep slopes, the
Friedman - Direct - Kienz
57
1 Palisades escarpment, but there are no steep
2 slopes within the developed areas.
3 I apologize. I went too fast. The court
4 reporter had asked me to go a little slow.
5 There are no acid soils on the site, and
6 the entire property is -- is within the floodplain
7 of the Hudson River.
8 MR. SEGRETO: Mr. Chairman, so I
9 don't constantly interrupt, I have a
10 continued objection to testimony by this
11 witness not within his field of expertise,
12 so as he continues to do it and I am
13 silent, that doesn't mean I do not object.
14 If you want me every time he says
15 something which I think is objectionable,
16 interrupt and object, I will do that.
17 As long as the Chair indicates that
18 there will be respect for a continued
19 objection to this kind of testimony, I will
20 not interrupt constantly.
21 Is that acceptable?
22 MR. GOULD: I think we have your
23 objection on the record.
24 MR. SEGRETO: As a continuing
25 objection.
Friedman - Direct - Kienz
58
1 MR. GOULD: As a continuing
2 objection.
3 MR. SEGRETO: Thank you very much.
4 Q Michael, could you give us an
5 assessment of the probable impacts of the project
6 upon the topics that you have discussed?
7 A Yes.
8 I believe the next expert will be the
9 engineering expert, the licensed professional
10 engineer who has prepared some specifications for
11 the project, and you will hear detailed testimony
12 on water and wastewater and stormwater, suffice it
13 to say, in my testimony that the site will utilize
14 central water surfaces, will discharge to a
15 municipal wastewater treatment plant, and will
16 have a stormwater system that's been designed in
17 accordance with state standards by the consulting
18 engineer.
19 There will be no impacts to water supply
20 and wastewater, and the stormwater will be
21 improved. That's a very simple statement.
22 Currently, the water sheet flows when it
23 rains -- very simply put, the water sheet flows
24 across either the paved or unpaved portions of the
25 site and into the Hudson River.
Friedman - Direct - Kienz
59
1 Post construction the project will have a
2 series of stormwater management, will have a
3 stormwater management system, which, essentially,
4 consists of a series of catch basins and other
5 facilities designed in accordance with the state
6 protocols.
7 That water will be directed into the Hudson
8 River, and in the condition of -- the constructed
9 project will improve the water quality of the
10 water detention into the river.
11 With respect to the parameters that -- the
12 environmental parameters that I have reviewed,
13 geology, groundwater, vegetation, the project will
14 have no impact -- no foreseeable impact on those
15 parameters. There is no vegetation to speak of.
16 Obviously, the project will clear cut
17 whatever scrubby vegetation exists on the site.
18 The project will have one significant
19 impact, and that is in the areas of soils. The
20 gross characterization -- my gross
21 characterization of the soils throughout the
22 property is that of a contaminated condition
23 today.
24 The levels of contamination and the
25 constituents vary, but the entire site, as I have
Friedman - Direct - Kienz
60
1 described previously two weeks ago, consists of
2 historic fill.
3 In addition to the historic fill, we have
4 areas that show elevated levels of PCBs, certain
5 areas showing elevated levels of what's known as
6 base neutral compounds associated with railroad
7 operations, and other constituents, and I will
8 grossly define that within the purview of a site
9 that has soils contamination.
10 The goal -- the goal of this project --
11 goal of my involvement in this project is the
12 remediation of this existing condition through the
13 process, which I have outlined this evening and
14 which I started two weeks ago.
15 In summary, that condition will be
16 completely remediated through the imposition and
17 installation of a cap over the site and the
18 imposition of deed restrictions, which I described
19 in my earlier testimony.
20 Q Are there any other unavoidable
21 impacts, Mr. Friedman?
22 A The obvious unavoidable impact will
23 be taking a space, a 90 plus or minus acre space
24 and imposing a project that has vertical
25 dimensions and the changes in the landscape of
Friedman - Direct - Kienz
61
1 this particular site, which you know very well.
2 There will be testimony which shows later
3 on through other experts -- architectural experts
4 that the project complies with the standards that
5 are imposed on this portion of Weehawken and the
6 view planes of the Hudson River. That is not a
7 part of my testimony, but those are parameters
8 that will be discussed through the hearing
9 process.
10 Q Will there be any freshwater
11 wetlands disturbed as a result of any work on this
12 site?
13 A No. I indicated earlier there are
14 no freshwater wetlands, there are no wetlands
15 associated with this property, freshwater or salt
16 water.
17 Q Do you have any other testimony --
18 A I think --
19 Q -- on the Environmental Impact
20 Statement, in this phase of it at least, Michael?
21 I have a few other questions, but do you have any
22 other?
23 A No.
24 Q Okay. You specifically did not talk
25 about air quality. Is that correct?
Friedman - Direct - Kienz
62
1 A I have not talked about that.
2 Q You will be talking about that later
3 on in the hearings as we talk about some other
4 parameters that we have to deal with. Is that
5 correct?
6 A Yes, it's my understanding that I
7 will reappear as a witness in these hearings.
8 Q Yes, you will.
9 You also didn't talk extensively about
10 water quality, water supply, storm and sanitary
11 sewer systems, is that correct, because Mr. Lanza
12 is going to be talking about that?
13 A Correct.
14 It's my understanding those specific issues
15 had been addressed by a licensed professional
16 engineer.
17 Q Along with other utilities. Is that
18 correct?
19 A That's correct.
20 Q And you also did not talk about in
21 Subsection 3, an assessment of the impact upon
22 schools, municipal services, roads, transportation
23 facilities, existing and proposed. Is that
24 correct?
25 A That's correct.
Friedman - Direct - Kienz
63
1 It's my understanding Dr. David Listokin
2 will be speaking on socioeconomic and those
3 impacted areas that you just described, as well as
4 traffic. I clearly did not discuss traffic, and
5 that's not my area of expertise.
6 Q Okay. We will be talking about
7 traffic later.
8 What other testimony do you want to place
9 before the board tonight, Michael?
10 A I think I would just like to add
11 with a summary statement that talks to my dialogue
12 two weeks ago and my dialogue this evening, and I
13 would like just to make a summary conclusion what
14 my feelings are and what the work of my company
15 has been.
16 It's my summary statement that the
17 development of the Port Imperial South property
18 will properly remediate this existing and former
19 industrial site, which is currently or which
20 currently has exposed and uncontrolled areas of
21 contaminated soils.
22 This remediation will result in a very safe
23 environment for the families of Weehawken to live
24 in, for the individuals who come to Weehawken to
25 work and to shop, and for the families and people
Friedman - Direct - Kienz
64
1 in Weehawken and elsewhere that come to enjoy the
2 play fields and the waterfront walkways that will
3 ultimately be constructed on the property.
4 MR. KIENZ: Thank you.
5 Do you have anything else?
6 THE WITNESS: No, I do not.
7 MR. GOULD: Thank you.
8 MR. KIENZ: That concludes the
9 direct on this witness.
10 MR. GOULD: Okay. Thank you.
11 We will take a short recess now for
12 ten minutes, and then we will come back
13 with any questions.
14 MR. DUNN: The record should
15 reflect 65 minutes for the witness's
16 testimony.
17 MR. GOULD: Okay.
18 (Whereupon, a short recess is
19 taken.)
20 MR. GOULD: Okay. All right.
21 Can we take a roll call once again, please.
22 THE SECRETARY: Carol Kravitz.
23 MS. KRAVITZ: Here.
24 THE SECRETARY: Albert Cabrera.
25 MR. CABRERA: Here.
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65
1 THE SECRETARY: Mark Gould.
2 MR. GOULD: Here.
3 THE SECRETARY: Richard Turner.
4 MR. TURNER: Here.
5 THE SECRETARY: Mr. Barsa.
6 MR. BARSA: Here.
7 MR. GOULD: Okay. Thank you.
8 All right. At this time if there
9 are any questions from the board for Mr.
10 Friedman, I would like to ask people to
11 start with that.
12 MR. CABRERA: I have one.
13 Mr. Friedman, when you were showing
14 the slides, I think it was Slide 156 or
15 155, you showed the front of a building
16 with the six feet of soil being capped,
17 then you showed another slide, and you
18 showed the walkway.
19 What's the amount of soil you used
20 to cap that walkway?
21 MR. WARE: Which one would you
22 like?
23 MR. CABRERA: I believe it's 155.
24 THE WITNESS: The amount of soil
25 used in the entirety of Port Imperial North
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66
1 was consistent.
2 I may have left you with a
3 misimpression on the first slide when I
4 pointed out that the individual was
5 six-foot two.
6 The amount of clean fill material
7 placed over the liner is 18 inches on Port
8 Imperial North throughout the entire
9 property.
10 There may be, in fact, areas where
11 there is more than 18 inches of fill
12 material, but the top of the cap in all
13 instances on the -- on all the slides that
14 I have shown in the -- is 18 inches.
15 MR. DUNN: What determines the
16 depth of the soil capping?
17 THE WITNESS: In the case of Port
18 Imperial North in the pictures that I
19 showed, it is a decision ultimately by the
20 State of New Jersey. It's what is
21 appropriate and prudent based on the
22 underlying soils on the condition of the
23 contamination. Typically, one goes from
24 one to three feet.
25 MR. GOULD: And is that
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67
1 contingent on the type of membrane as well?
2 THE WITNESS: Not necessarily, but
3 as an example, where one had a cap that was
4 over a chromium area, the layering would be
5 different than that cap which would be over
6 a nonchromium area.
7 MR. GOULD: I heard you refer to
8 the State of New Jersey residential
9 standards a number of times.
10 Is that a specific standard parts
11 per million or something that you could
12 tell us, and is a standard that would be
13 applied across the entire development site
14 or does the standard change contingent on
15 the use at that location?
16 THE WITNESS: It's a good question.
17 I talked all through this evening
18 about the compliance with state rules and
19 regulations. I indicated that there is a
20 Memorandum of Agreement.
21 There is a set of regulations in New
22 Jersey known as Technical Requirements.
23 This -- the whole process, the entire
24 ground field remediation process, the
25 Memorandum of Agreement, all the steps I
Friedman
68
1 spoke about are contained within those
2 technical requirements.
3 Additionally, there is a series of
4 standards, which have been identified by
5 the legislature and have been codified in
6 regulations. There are standards for
7 residential standards, and there are
8 standards for nonresidential standards in
9 soil, and there are probably standards for
10 -- I am going to guess -- 100 different
11 parameters from metals to base neutral
12 compounds, volatile organics, all different
13 types of contaminants, and there are
14 written prescribed standards.
15 If one is above those standards, one
16 has to remediate a piece of property. If
17 one is below those standards, obviously,
18 one does not have to, and the conclusions
19 that I articulated this evening and in
20 response to your question virtually -- not
21 virtually -- the entire Port Imperial South
22 property that will be the subject of this
23 development will be remediated and
24 encapsulated, and, therefore, the
25 conclusion that I drew is that the entire
Friedman
69
1 site has levels of contamination of one
2 form or another that are above state
3 standards, residential standards.
4 MR. GOULD: And when the
5 remediation is complete, what's the level
6 that it will adhere to?
7 THE WITNESS: When the remediation
8 is complete, there will be no contaminant
9 above a residential standard because the
10 entire site will be capped, sealed.
11 MR. GOULD: So you will use the
12 residential standard for any of the
13 elements that might be found on the site
14 throughout the entire site?
15 THE WITNESS: Said a different way,
16 the residential standards or the most
17 stringent standards will be used for the
18 entire site.
19 MR. GOULD: Okay. Just so maybe
20 you can educate me and the board a little
21 bit, I know there are two types of
22 membranes, pervious and impervious. Right?
23 THE WITNESS: Correct.
24 MR. GOULD: Would those both be
25 utilized on this site?
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70
1 THE WITNESS: The answer is yes for
2 the vast majority of the site, and I can't
3 tell you the exact acreage, but the vast
4 majority of the site does not contain
5 hexavalent chromium or the hazardous form
6 of chromium, so that portion or those
7 portions of the site that I refer to as the
8 standard cap, which consists of impervious
9 -- excuse me -- consists of an impervious
10 membrane, a membrane that allows water to
11 pass through, covered by a soil layer, will
12 be used.
13 For discrete portions of the site --
14 and my definition of "discrete" is those
15 portions of the site that have evidence of
16 historic chromium deposition -- will use a
17 multilayered cap, and that the design of
18 that cap has not been established yet, but
19 one of the layers of that cap will be an
20 impervious layer so that there will, in
21 fact, be no vertical water transported from
22 either below or above to the chromium layer
23 below.
24 MR. GOULD: So in both directions
25 you will get no flow?
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71
1 THE WITNESS: And there is a seal.
2 There is a vertical seal.
3 MR. GOULD: Is there any hazard
4 in an area where you have got a title
5 groundwater maybe going up and down, a
6 lifting membrane, doing anything like that?
7 Is that a concern?
8 THE WITNESS: No, I don't believe
9 there is. There are no areas of the site
10 that are currently breached by groundwater,
11 and, in fact, you will hear in future
12 testimony the vast majority of the site
13 will be elevated a good number of feet
14 prior to construction.
15 MR. GOULD: And as I understood
16 what you said, you are, basically, through
17 sampling, waiting for results at this
18 point?
19 THE WITNESS: We are waiting for
20 results of the next step in our process to
21 put together remedial investigation
22 reports. We have an approved workplan,
23 completed the sampling. We have much of
24 the data in our office, which is currently
25 being reviewed, and we are assembling that
Friedman
72
1 information, tabulating it and putting it
2 into a report for submission to the state.
3 MR. GOULD: And that would be
4 when you would say how many membranes, how
5 much, how deep the soil, all those kinds of
6 things?
7 THE WITNESS: That is the step
8 prior to that.
9 Once we assemble the data and we
10 determine precisely what we have, where we
11 have it, we superimpose the project that is
12 in front of the board.
13 We will then design with the
14 engineers that layering of the cap, that
15 cap, in all certainly, we will do that in
16 concert with the State of New Jersey and
17 the case manager, and then submit a report
18 -- a remedial action workplan, which is the
19 solution to the statement for approval.
20 MR. GOULD: Are there any special
21 considerations on a shoreline property such
22 as this, as to how to deal with that edge
23 condition against the river, special
24 detail?
25 THE WITNESS: The answer is, yes,
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73
1 there is a shoreline detail that is
2 included as a part of the design, so that
3 the shoreline and that the cap is tied in
4 with either the existing rip-rap or the
5 rip-rap or shore stabilization, which will
6 be put in place as a part of this project.
7 MR. GOULD: Okay. And my last
8 question is, in a situation where maybe you
9 have 18 inches of clean fill on top of the
10 membrane and then you put planting on top
11 of that, mainly, say, trees, is there any
12 special consideration that needs to be made
13 for roots growing down into -- piercing the
14 membrane or doing anything like that?
15 THE WITNESS: Yes.
16 I will expand upon your questioning.
17 There are considerations and
18 procedures for invading the cap once the
19 cap is in place, because you can well
20 imagine we have utilities in some places
21 that will be under the cap, and so there
22 are construction specifications for future
23 invasion of the cap that mandate that if
24 the cap is invaded, it has to be put back
25 together whether we are dealing with the
Friedman - Cross - Segreto
74
1 impervious or pervious membrane and the
2 appropriate amount of clean soil after the
3 invasion of that cap for repairs.
4 There are certain types of
5 landscaped features which should be used
6 and others which should not be used because
7 of things like root balls and depth of
8 route, and that needs to be incorporated
9 and, in fact, will be incorporated into the
10 landscaping plan.
11 MR. GOULD: Okay. Thank you.
12 Any other questions from the board
13 members?
14 Okay. Mr. Segreto, do you have
15 cross-examination?
16 MR. SEGRETO: As I sometimes say, I
17 have one or two questions.
18 CROSS-EXAMINATION BY MR. SEGRETO:
19 Q Now, sir, you have through your
20 firm, EcolSciences, prepared this August 16, '99
21 Environmental Impact Statement, Port Imperial
22 South. It's a very voluminous report.
23 It indicates the names of some of the -- of
24 your associates who assisted you in doing all of
25 the research and gathering the data and putting
Friedman - Cross - Segreto
75
1 the report together.
2 That's true, isn't it?
3 A Yes, it is, sir.
4 Q And I assume you didn't simply come
5 up with the whole set of predetermined conclusions
6 and put them in a report, but rather you did all
7 kinds of investigations, gathered facts, analyzed
8 that, and things of that sort.
9 Did you do all those things?
10 A Yes, we did, sir.
11 Q And I assume that in order to
12 prepare in good conscious of a report in which you
13 suggest that everything is okay from an
14 environmental point of view for this project, that
15 you carefully considered and relied upon all of
16 the datum and the documents and publications that
17 you referred to as source material. Isn't that
18 so?
19 A That is correct.
20 Q Now, I will bet there is quite a
21 volume of documents, isn't there?
22 A Yes. That's correct.
23 Q And they would be part of your file.
24 Right?
25 A That's correct.
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76
1 Q I would like you -- do you have your
2 entire file here?
3 A No, I do not.
4 MR. SEGRETO: I would, through the
5 Chair, respectfully ask that the witness be
6 directed to produce at the next meeting for
7 my cross-examination his entire file.
8 We have established the predicates
9 that this report, which has been marked,
10 and his testimony, is based upon documents
11 which are in his file and which constitute
12 the factual preface for the opinions
13 expressed, not only on the stand but in his
14 report.
15 There is a whole series of reported
16 decisions which say an expert gives a net
17 opinion and it's established that he has in
18 his file documents which he relied upon for
19 the purpose of preparing his report and
20 expressing his net opinions, that he is
21 required to give them to the
22 cross-examining attorney so that I can
23 examine him in connection with those
24 predicates, and I pointedly ask that
25 through you that counsel voluntarily
Friedman - Cross - Segreto
77
1 produce the entire file for my inspection
2 so I can look at it and determine what
3 parts of it I need at the next meeting.
4 If counsel will not do that, then
5 pursuant to the provisions of the Land Use
6 Act, I now make a formal request for the
7 issuance of the subpoena duces tecum to
8 compel the EcolSciences firm to bring its
9 entire file at the next meeting.
10 MR. DUNN: Mr. Kienz.
11 MR. KIENZ: Well, first I am
12 going to object to that, because under
13 Section 10 of the Municipal Land Use Law
14 it's my opinion that the only one who has
15 the power to seek a subpoena is the board
16 Chair.
17 I have heard nothing from the board
18 indicating that they think Mr. Friedman's
19 testimony is inadequate or that, in fact,
20 this board wants to seek an inquiry of all
21 the background data that he used to
22 assemble the information that's contained
23 in the report.
24 I think this is a fishing
25 expedition. I think this is very clear
Friedman - Cross - Segreto
78
1 that we are just trying to waste some
2 precious board time here. I don't think
3 this really bears down on the merits of the
4 application.
5 MR. SEGRETO: I --
6 MR. DUNN: Just a minute.
7 Mr. Kienz, are you finished?
8 MR. KIENZ: Yes, Mr. Dunn.
9 MR. DUNN: Mr. Segreto.
10 MR. SEGRETO: Yes, I extend to the
11 attention of the board the recent cases
12 that was decided by Judge Harris in Bergen
13 County on Monday of this week, that
14 involves a complication by McDonald's in
15 Fort Lee and this issue, which is directly
16 on point, and I did exactly there as I have
17 done here, I asked the expert which he
18 relied upon arriving at his net opinion,
19 his attorney objected.
20 The board sustained it. Judge
21 Harris in comprehensive two-hour opinion
22 said it was a denial upon undue process,
23 and he validated -- invalidated the
24 approval, set aside the approval, and,
25 among other reasons, he indicated that the
Friedman - Cross - Segreto
79
1 failure to provide me with either the
2 voluntary presentation of the file so I
3 could cross-examine by the attorney for the
4 applicant or the issuance of the subpoena
5 constituted a denial of fundamental due
6 process, and the judge relied upon about 50
7 cases, which I cited in my brief.
8 MR. DUNN: Are you citing a
9 reported opinion to us?
10 MR. SEGRETO: No, I am citing to
11 you 50 reported decisions, counsel, I am
12 sure in your experience --
13 MR. DUNN: Perhaps you should
14 write a brief for us, if the decision of
15 Judge Harris is a reported decision.
16 MR. SEGRETO: No, the decision of
17 Judge Harris is not, but I said to you his
18 decision relied upon, I think, 30 reported
19 decisions of the Supreme Court and the
20 Appellate Division, which has so held.
21 MR. DUNN: If you are going to
22 site an unreported opinion to us, you have
23 an obligation under the rules of court to
24 provide a copy to us and to the -- and to
25 your adversary.
Friedman - Cross - Segreto
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1 Am I correct?
2 MR. SEGRETO: Counsel, this is
3 exactly what happened in Fort Lee.
4 The attorney for the board said,
5 "Where are the cases, Mr. Segreto?"
6 And I said to him now what I say to
7 you, I am surprised that an attorney for a
8 board is not familiar with the established
9 law pertaining to the right of
10 cross-examination in land-use matters and
11 the right of the cross-examining attorney
12 to have the file.
13 Now, if you want me to fax to you
14 tomorrow and to my colleague the photocopy
15 of that point of my brief, which collates
16 all the cases, I will be delighted to do
17 it.
18 However, let us be mindful of the
19 fact that we have another meeting next
20 week. I do not want to be told that I am
21 delaying the process.
22 It would seem to me that on an issue
23 so fundamental and so clear under the
24 decisional law, not under a reported
25 decision, the decisional law I have a right
Friedman - Cross - Segreto
81
1 of cross-examination and I have the right
2 to examine the document.
3 If we don't resolve it tonight to
4 the end that I don't have it promptly, I
5 will not be prepared to conclude my
6 cross-examination, and it is my
7 understanding that the board and the
8 applicant proceed at its own peril if they
9 frustrate my having a cross-examination.
10 Will the counsel for the applicant
11 furnish me with access to the entire file
12 so that I can prepare myself adequately to
13 cross-examine this witness?
14 MR. DUNN: That's directed to
15 the Chair, I assume.
16 MR. SEGRETO: To the Chair and to
17 counsel.
18 MR. DUNN: Counsel.
19 MR. KIENZ: I think this is
20 inappropriate.
21 If the board issues me a subpoena,
22 we will abide by that subpoena. I think
23 that's what the Municipal Land Use Law
24 talks about, so the board has the power,
25 and if the board issues it, we will do
Friedman - Cross - Segreto
82
1 that.
2 The applicant will have -- the mover
3 for the subpoena, obviously, will have to
4 pay for those expenses. That's fine if
5 that's what the board wishes.
6 MR. DUNN: Is that stipulated,
7 Mr. Segreto, that you will pay any expenses
8 of the applicant in connection with
9 providing the file?
10 MR. SEGRETO: I am not going to
11 stipulate it.
12 The cases say I have a right to see
13 it. They have an application. They have
14 submitted the report. They have submitted
15 testimony. I have an inescapable and
16 indubitable right to look at the file, and
17 I don't have to pay to look at it -- at it.
18 Yes, I will go down to their office
19 to look at it, and I am not asking anybody
20 to reimburse me. My clients will pay me to
21 do that, but I want to look at the file. I
22 don't have to pay anybody any money for
23 compensation to exercise a right as a
24 cross-examining objector attorney.
25 I will not pay any money to them to
Friedman - Cross - Segreto
83
1 do what they have an obligation to do, and
2 that is to produce the file, and I
3 respectfully ask for a ruling one way or
4 the other.
5 Counsel says he won't do it
6 voluntarily. I now ask that a subpoena be
7 issued compelling the production of the
8 document, and if you want to do it at the
9 next meeting, I will do that, but then we
10 are going to have the tedious process of my
11 going through it.
12 I am prepared to spend my time in
13 advance to cull out for it and speed up the
14 process so I know exactly what documents I
15 will be cross-examining him about.
16 MR. DUNN: All right.
17 MR. GOULD: Okay. Mr. Kienz, the
18 board is going to issue the subpoena for
19 these documents.
20 MR. DUNN: The board has issued
21 the subpoena for these documents.
22 Will you stipulate that the subpoena
23 has been issued?
24 MR. KIENZ: I believe I said I
25 would do what the board directed in this
Friedman - Cross - Segreto
84
1 instance.
2 If, in fact, the board issued a
3 subpoena, we would, based upon that
4 information, Mr. Chairman, the documents
5 will be available.
6 We will not reproduce -- we will
7 produce them at Mr. Friedman's office for
8 Mr. Segreto to examine.
9 MR. SEGRETO: I will call counsel
10 and make arrangements, and if there are any
11 documents that I want reproduced, it will
12 be at my expense. They will tell me what
13 the reproduction costs are, and I will
14 bring a blank check with me when I go down
15 there, and it will be a good blank check.
16 It won't be a rubber blank check.
17 MR. DUNN: Okay. So the record
18 will reflect that a subpoena has been
19 issued and Mr. Kienz has acknowledged
20 service.
21 MR. KIENZ: Yes, sir, Mr. Dunn.
22 I assume this is not an additional
23 time on the cross-examination, though.
24 MR. SEGRETO: I am sorry.
25 MR. DUNN: Let's move on.
Friedman - Cross - Segreto
85
1 Q Now, with regard to the
2 Environmental Impact Statement, were any of your
3 associates the actual authors of any portion of it
4 or were you the author of the entire environmental
5 statement?
6 A The production and writing of this
7 document was a collaborative effort.
8 Q And with regard to the several
9 chapters that are in here, will your records, when
10 I come to inspect them, reflect who the author was
11 of each constituent part?
12 A No, it's my understanding, since I
13 am producing the document, I better have a good
14 understanding that you are asking of me to produce
15 those documents which are identified on page --
16 Q No, sir, the entire file which you
17 have said constitutes the work product, which is a
18 predicate for your report and your testimony. The
19 entire -- entirety of your file is what I
20 understand you are going to produce for my
21 inspection?
22 A Fine.
23 Q Nothing edited, the whole thing, so
24 we have no misunderstanding.
25 Now, I again want, in the interest of the
Friedman - Cross - Segreto
86
1 efficiency of time, if there are other people who
2 have produced other specific portions of this
3 report, needless to say, if I ask this witness
4 about something which somebody else did, based on
5 that person's input, he is going to be able to
6 tell me, "That's what my colleague said," and I
7 don't want a phenomenon in which I am constantly
8 going to be saying, "Well, I need another subpoena
9 to get that person."
10 All I want for our present purposes is that
11 they identify who is the author of what part.
12 Now, are you aware, sir -- are you aware,
13 sir --
14 MR. DUNN: Wait a minute.
15 What did you just say? Can the
16 reporter read that back to me, please.
17 MR. SEGRETO: I want them to
18 identify --
19 MR. DUNN: I asked the court
20 reporter to read it back. I would like to
21 hear it, what you originally just said.
22 (Whereupon, the court reporter reads
23 as requested.)
24 MR. DUNN: Wait a minute.
25 You are asking the witness to
Friedman - Cross - Segreto
87
1 identify who is the author of each part of
2 the report, is that correct, Mr. Segreto?
3 MR. SEGRETO: Yes.
4 MR. DUNN: Okay. Thank you.
5 Can you do that, sir?
6 THE WITNESS: That would be a very
7 difficult undertaking. I don't believe I
8 can.
9 Q When you look at your file, you
10 would be able to do that, though?
11 A No, because the file disregards
12 draft reports.
13 Q There is no way for you to know what
14 part of this you actually wrote and which was
15 written by others?
16 A I cannot go down the 55 or 57 pages
17 and give you a line-by-line annotation as to who
18 the principal author, who the previewing author,
19 who the editing author was of that material.
20 Q I will withhold any inquiry on this
21 line until after I go through the file.
22 Now, are you aware of the fact that another
23 environmental consulting engineer and planning
24 firm has also done an Environmental Impact
25 Statement with a planned development application
Friedman - Cross - Segreto
88
1 of Port Imperial South?
2 A Could you identify that document,
3 please?
4 Q Yes, an Environmental Impact
5 Statement for planned development application,
6 Port Imperial South, dated July 1998, prepared by
7 Paulus, Sokolowski & Sartor, Inc.?
8 A Yes, I was aware that document was
9 produced.
10 Q Did you consult with or those people
11 or did you review the report to see how it
12 comported with any of the conclusions that you
13 reached?
14 MR. KIENZ: Mr. Chairman, I am
15 going to object to this line of
16 questioning.
17 This is not what Mr. Friedman
18 testified to.
19 If Mr. Segreto wants to enter other
20 documents into the record, he can do that
21 during the appropriate time as outlined by
22 you at the last hearing when you went
23 through the procedure.
24 Mr. Friedman testified on his report
25 that was prepared under his supervision, so
Friedman - Cross - Segreto
89
1 I think this is irrelevant.
2 MR. DUNN: Your objection is
3 overruled.
4 A Mr. Segreto, my answer to your
5 question is: On Page 54, I believe the document
6 that you are holding in your hand, which I do not
7 have a copy of, is identified in the referenced
8 material; so, therefore, the document was
9 consulted by members of my staff in the
10 preparation of this report.
11 Q Now, did you also look at the --
12 MR. GOULD: Hold on, please.
13 Okay. Continue.
14 Q Did you also look at the
15 Environmental Impact Statement of the planned
16 development application involving the banana
17 building development dated August 1999 prepared by
18 the same Paulus, Sokolowski & Sartor firm?
19 A No, we did not.
20 Q Did you consider in your
21 Environmental Impact Statement the banana
22 building?
23 A We considered portions -- I was
24 aware -- I was aware that a separate Environmental
25 Impact Statement would be prepared for that
Friedman - Cross - Segreto
90
1 particular property.
2 Q That's interesting, but it's not
3 responsive to my question.
4 My question is: Did you include an
5 environmental analysis of the banana building
6 development in your environmental impact report of
7 August 16, '99?
8 A Only with respect to the elements of
9 my testimony referred to in remediation.
10 Q Well, you said practically nothing
11 about the banana building except making a passing
12 reference.
13 My question is: Did you with regard to the
14 component, which is the banana building
15 development, did you consider and do an
16 environmental impact as to that portion of this
17 total development application?
18 A The answer is no.
19 Q Has someone else, to your knowledge,
20 done that?
21 A Yes.
22 Q Who?
23 A Paulus, Sokolowski & Sartor.
24 Q I take it then that any opinions
25 that you have expressed in this Environmental
Friedman - Cross - Segreto
91
1 Impact Statement do not appertain to the total
2 planned development, which is the application
3 before this board?
4 A The opinions which I expressed in
5 front of the board this evening and two weeks ago
6 related to the remediation of the property that I
7 refer to Port Imperial South includes Lot C as I
8 refer to lot C or the banana building.
9 However, the Environmental Impact Statement
10 parameters, which were the latter part of my
11 testimony this evening, did not include that
12 property known as the banana building.
13 Q Why don't you tell us now so we
14 clearly understand on the record what parts of
15 this total planned development, the entirety of
16 it, what parts of it were considered by you in
17 your Environmental Impact Statement and considered
18 by you in connection with the direct testimony
19 which you had given before this board.
20 MR. KIENZ: Michael, did you
21 understand the question?
22 MR. SEGRETO: You said "Port
23 Imperial."
24 MR. KIENZ: Did you not
25 understand the question?
Friedman - Cross - Segreto
92
1 MR. DUNN: Let's not -- Mr.
2 Kienz, if you have an objection, state it
3 on the record.
4 MR. KIENZ: I will state it on
5 the record.
6 Mr. Dunn, that was a compound
7 question, and it's impossible for the --
8 for Mr. Friedman to answer it as stated.
9 MR. DUNN: And the witness is an
10 experienced witness. If he can't
11 understand the question, I am sure he will
12 say it. We can avoid a lot of problems if
13 we don't have these kinds of objections.
14 MR. SEGRETO: Counsel, please don't
15 speak to the witness while he is under
16 cross-examination. That's inappropriate.
17 THE WITNESS: Mr. Segreto. I am
18 sorry.
19 Can I proceed?
20 MR. DUNN: Do you want to
21 rephrase the question?
22 MR. SEGRETO: I will ask the
23 question again.
24 Q Can you tell us what components of
25 the application, which is before the board, the
Friedman - Cross - Segreto
93
1 total application, were not covered by your
2 Environmental Impact Statement report of July
3 1998, what is not included in your report?
4 A Yes.
5 Very explicitly two sections of the
6 property, one that you have referenced, the banana
7 building, and a second, that portion of the
8 property known as the new ferry maintenance
9 facility.
10 Q Well, do I take it, then, that the
11 residential elements of this total application are
12 not referred to or considered in the Environmental
13 Impact Statement of July 1998?
14 A Are you referring to the PS&S
15 document?
16 Q I am talking about your document --
17 I am sorry -- I held the wrong one up.
18 Your Environmental Impact Statement --
19 thank you for correcting me -- I am sorry -- of
20 August 16, 1999?
21 A With all due respect, could you
22 repeat your question.
23 Q Now, you have a report of the
24 Environmental Impact Statement?
25 A Correct.
Friedman - Cross - Segreto
94
1 Q Are you aware that there are
2 residential development components of this total
3 application?
4 A Yes, I am.
5 Q Does anything in your Environmental
6 Impact Statement appertain to any of the
7 residential developments which are pro -- which
8 are a proposed part of this application?
9 A Yes, it does.
10 Q All right. Which of the residential
11 developments does it relate to?
12 A All of the residential developments
13 that are proposed for Port Imperial South.
14 Q How many residential units are
15 proposed, sir?
16 A My understanding that were we did
17 the document in August of 1999, there were 1362
18 units.
19 Q And is that your understanding as to
20 the total number of proposed residential units
21 that are involved in this total planned
22 development?
23 A I am not certain what that number is
24 this evening, sir.
25 Q Well, just tell me very quickly with
Friedman - Cross - Segreto
95
1 regard to the existing ferry, part of this plan is
2 to eventually demolish that ferry terminal and
3 build a new one at a different location. Isn't
4 that so?
5 A That is correct, sir.
6 Q And I notice that in your table of
7 contents, one of the things you took into account
8 was zoning boundaries. Isn't that so?
9 MR. KIENZ: Mr. Chairman, I am
10 going to object.
11 He didn't testify.
12 MR. SEGRETO: Section 2B.
13 MR. DUNN: His report is in
14 evidence. All right.
15 MR. SEGRETO: It's marked as an
16 exhibit.
17 MR. DUNN: His report has been
18 marked as an exhibit, and the
19 cross-examination can proceed with respect
20 to what's in the report.
21 MR. KIENZ: I want to note my
22 objection because the report speaks for
23 itself.
24 MR. DUNN: The objection is
25 overruled.
Friedman - Cross - Segreto
96
1 Let's move on.
2 THE WITNESS: Yes. Section 2B is
3 the zoning boundaries within the Township
4 of Weehawken.
5 Q When you did your zoning boundary
6 analysis, did you do it or someone else in your
7 office?
8 A I did not personally do it.
9 Q It was done under your supervision?
10 A Yes, sir.
11 Q I guess you looked at it?
12 A I looked at it and I read the
13 sections, sir.
14 Q Now, are you aware that a ferry
15 terminal is not a permitted use in the zone?
16 MR. KIENZ: I am going to object
17 to that.
18 There is no testimony on that. To
19 ask for conclusions, he specifically did
20 not talk about planned use planning issues.
21 We narrowed it down to exactly what he was
22 testifying to.
23 Q There is a section, Roman numeral
24 IIB dealing with zoning. I didn't put it there.
25 It's there.
Friedman - Cross - Segreto
97
1 If you don't know the answer to the
2 question, instead of our quibbling back and forth,
3 just say, "I don't know," and I will wait until
4 the planner gets on the stand, but you have put as
5 a component a zoning component in your plan, and I
6 want to know from you as to whether or not you are
7 aware whether or not a ferry terminal is a
8 permited use in the zone where it is located.
9 A I do not know the answer to that
10 question.
11 MR. KIENZ: I am going to object.
12 Q Do you know if it's a permited use
13 in the area of the property where it's proposed to
14 be relocated?
15 MR. KIENZ: I am going to object
16 to this line of questioning.
17 He was qualified to testify to
18 certain areas under the Environmental
19 Impact Statement.
20 I specifically indicated in my
21 opening comments to everyone here that Mr.
22 Friedman was going to be talking about
23 certain specific things under the
24 Environmental Impact Statement and that we
25 would be putting in testimony that
Friedman - Cross - Segreto
98
1 addressed a myriad of issues under your
2 ordinance, but that we were starting
3 literally from the ground up, and that's
4 exactly what Mr. Friedman did.
5 He did not talk about zoning. We
6 have zoning coming in later. That's
7 reflected very, very clearly in the first
8 record I made before the board.
9 MR. SEGRETO: I don't know, and I
10 will not ask this witness any questions
11 concerning the zoning.
12 MR. DUNN: All right.
13 Q Would it be correct to say, sir,
14 that there are components, however, of this
15 Environmental Impact Statement report which are
16 not within your expertise?
17 A Yes, that would be a correct
18 statement.
19 Q All right. And to the extent that
20 this report contains any matters and conclusions,
21 which are not within your expertise, you agree
22 that as an expert you cannot opine any of your own
23 opinions concerning those areas which are outside
24 of your expertise? Do you agree with that?
25 MR. KIENZ: I am going to object
Friedman - Cross - Segreto
99
1 to that because he is asking for a legal
2 conclusion that Mr. Friedman is not
3 qualified to give.
4 MR. DUNN: Sustained.
5 MR. SEGRETO: I will withdraw the
6 question.
7 MR. DUNN: That objection is
8 sustained.
9 Q Now, in this report of yours, the
10 Environmental Impact Statement, obviously, you are
11 interested in whether there are any elements of
12 the environment related to this property and the
13 proposal which create risk. Isn't that so?
14 A I don't believe I used the word or
15 the document utilizes the word "risk."
16 I believe the purpose of an Environmental
17 Impact Statement in accordance with the ordinance
18 is to --
19 Q Forgive me. I am sorry.
20 A -- yes, to put forth a narrative as
21 to what an applicant proposes, to put forth a
22 narrative describing the environment, marrying the
23 proposed project with the existing environment to
24 draw conclusions positive or negative regarding
25 the impacts, so I make that statement based on my
Friedman - Cross - Segreto
100
1 26 years doing this and probably preparing over
2 1,000 documents and testifying in well over 100
3 communities on the matter.
4 Q You said something in your response
5 -- and forgive me -- but you said something, a
6 positive or negative what, impacts?
7 A Yes.
8 Q Now, I may have missed it, but is
9 there somewhere in the entirety of this voluminous
10 report where you make any reference to
11 carcinogens?
12 A I don't believe -- I don't believe
13 the word "carcinogen" appears in the document.
14 Q Now, you are a biologist, aren't
15 you?
16 A By training, yes.
17 Q Isn't there a vast repository of
18 published datum which identify many kinds of
19 contaminants as inducive of cancer in human
20 beings?
21 A Yes.
22 Q Now, on that list is chromium one of
23 them?
24 A I believe it is.
25 Q Are PCBs another group of them?
Friedman - Cross - Segreto

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