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WEEHAWKEN PLANNING BOARD HEARING
NOVEMBER 4, 1999
FULL TRANSCRIPT
PAGES 1
67 TO 213

Jeffrey Lanza, Engineer, Direct Testimony
Michael Friedman Environmental Witness, Cross-Examination by James Segreto

Below is the transcript from the Weehawken Planning Board Hearing on
N
ovember 4th, 1999.  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.

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167
1 the Port Imperial project."
2 Did somebody in your shop do that analysis
3 or did you get that from Mr. Lanza?
4 A As identified on Page 6, the source
5 of that information was PS&S, and it probably was
6 Mr. Lanza.
7 Q All right. I assume you got
8 something from PS&S. Right?
9 A Yes.
10 Q And nobody in your shop did any
11 expiration on wastewater, so I don't have to ask
12 anything about that. Is that right?
13 A That's correct.
14 Q Until to the extent you comment as
15 to its derivative what somebody else told you.
16 Right?
17 A The source of that narrative
18 documentation came -- the source is PS&S as it's
19 cited.
20 Q By the way, Mr. Lanza is with that
21 group, isn't he?
22 A Yes, he is.
23 Q I may have one or two questions
24 about wastewater.
25 Now, you have a section on Page 10 that
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1 deals with "Stormwater Management Facilities."
2 Would it be correct to say that any
3 comments about Stormwater Management Facilities
4 contained in your report are derivative and based
5 on what others told you?
6 A Not necessarily.
7 Q All right. Who in your office did
8 any wastewater analysis?
9 A I believe you are talking about
10 stormwater.
11 Q No -- I am sorry -- yes, Stormwater
12 Management Facilities, Page 10, Item E.
13 Who did this stormwater management analysis
14 in your shop?
15 A Dr. David Bell, Mrs. Carol Campman.
16 Q Is Dr. Bell an engineer?
17 A No, Ms. Campman is an engineer.
18 Dr. Bell is a PhD in water quality
19 analysis.
20 Q He is a what?
21 A PhD in water quality analysis
22 specialty.
23 Q Would you be good enough to go to
24 the two boxes that we have here and pull out his
25 analysis, his wastewater analysis.
Friedman - Cross - Segreto
169
1 A His analysis is contained in this
2 document.
3 Q What happened, he one day dictated
4 this out of the clear blue without going -- doing
5 an analysis, without having documents in front of
6 him, without doing calculations? Is that the way
7 it happened?
8 A I don't think it happens quite like
9 that, but if you will read the paragraph and you
10 see the source materials and you inject
11 conversations with the design engineer and you
12 take two individuals who have probably more than
13 50 years of consulting experience, you are
14 probably not far from being correct.
15 Q Do you remember yesterday when we --
16 when your office took -- helped me with the
17 documents, I inquired of you, "Do you have
18 anywhere in your file any original calculations or
19 notes from which the text here was written by way
20 of conclusion?"
21 A Yes, you asked me for predecessor
22 documents.
23 Q And did you indicate to me that you
24 have any such notes and calculations?
25 A I indicated to the contrary.
Friedman - Cross - Segreto
170
1 Q You told me you didn't have any.
2 Right?
3 A That's correct.
4 Q So if this gentleman, Dr. Bell --
5 A Yes.
6 Q -- if he did any calculations, there
7 is no evidence that he did it, put something on
8 the piece of paper, there is no evidence in your
9 file that he did that, is there?
10 A No, there is not.
11 You have my full file, sir.
12 Q I know.
13 The reason I am asking these questions is
14 because I couldn't find any here, and I was
15 wondering if I missed something.
16 MR. DUNN: Forgive me, Mr.
17 Segreto, but I don't see anywhere in this
18 particular paragraph where it talks about
19 calculations at all.
20 It says, "The engineer for the
21 proposed planned development is currently
22 working with the NJDEP to determine the
23 optimum mix of structural water quality
24 controls."
25 I don't see anything in here about
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171
1 calculations, so I think the whole line of
2 questioning for the last couple of minutes
3 has been irrelevant.
4 MR. SEGRETO: Well, he makes
5 references to "structural water quality
6 controls to be incorporated into the
7 stormwater management system."
8 He indicates that "Frequent street
9 cleaning will be implemented to reduce the
10 amounts of sediment and other materials
11 that might be entrained in stormwater
12 runoff form impervious surfaces on the
13 developed property. Previous surfaces will
14 be covered with landscaped vegetation, et
15 cetera, and it deals with stormwater
16 management facilities.
17 MR. DUNN: That's what Mr. Lanza
18 testified to tonight.
19 MR. SEGRETO: Pardon?
20 So that's what Mr. Lanza testified
21 to tonight.
22 MR. SEGRETO: All I am doing is by
23 way of exclusion, to demonstrate what this
24 Stormwater Management Facility section
25 deals with.
Friedman - Cross - Segreto
172
1 Q Is it correct to say that the only
2 comments in your entire EIS dealing with
3 Stormwater Management Facilities is contained on
4 Page 10?
5 A No.
6 Q What else?
7 A Page 35.
8 Q And that one deals with B, which is
9 "Surface Water." Right?
10 A Well, if you read the underlined
11 paragraph you will see that stormwater is
12 discussed within the context of Surface Water.
13 Q And did Dr. Bell also prepare this
14 one?
15 A Dr. Bell and Ms. Campman.
16 Q What?
17 A Dr. Bell and Ms. Campman.
18 Q And anything else dealing with the
19 environmental impacts of the stormwater surface
20 water?
21 A Short of rereading the entire
22 document very quickly, I don't have any other
23 references, sort of rereading it. There may be
24 one or two other references in the latter
25 chapters.
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1 I don't want to exclusively state that
2 there are no other references.
3 Q Now, with regard to Paragraph B,
4 doesn't this indicate that there are hexavalent
5 chromium which exceeds residential soil cleanup
6 criteria?
7 MR. DUNN: Paragraph -- can I
8 have the reference again to the paragraph?
9 MR. SEGRETO: Paragraph B.
10 MR. DUNN: B on page?
11 MR. SEGRETO: 35.
12 Q The fifth line from the bottom
13 paragraph.
14 A Yes, I think it does in a very
15 positive manner for the residents of Weehawken,
16 for the characteristics of the Hudson River and
17 this board and public to realize, I think the
18 sentence that you are taking out of context talks
19 about the existing conditions right now in which
20 stormwater flows, sheet flow over uncontrolled
21 soils containing these constituents, and that
22 after remediation of the site, which will be
23 capped, there will be no flow of uncontrolled
24 water over these constituents.
25 Q Of course, you conclude that
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1 Paragraph D by saying, "The stormwater discharge
2 from the subject property after development should
3 not have any percepible adverse impact on the
4 water quality or ecological functions of the
5 Hudson River."
6 Who did the analysis to come to that
7 conclusion?
8 A Dr. David Bell.
9 Q And what were the factual
10 predicates? Tell us what investigation he did to
11 buttress that conclusion.
12 A Dr. David Bell is one of the
13 preeminent experts in the United States on the
14 Hudson River.
15 Q I understand that.
16 A I am not sure you do.
17 I am giving you the background. I haven't
18 finished yet.
19 Q I am sorry.
20 A Dr. David Bell is one of the primary
21 authors of the impacts on the Hudson River of the
22 Westway project.
23 Over a decade or a decade and a half ago,
24 he conducted much of the water quality studies and
25 is personally knowledgeable on the water quality
Friedman - Cross - Segreto
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1 parameters of the entire region of the Hudson
2 River.
3 Dr. David Bell is a graduate of Stanford
4 University, Phi Beta Kappa, full university
5 professor currently, full-time employee of
6 EcolSciences, and has the mental capacity and
7 experience to render such opinions, sir.
8 Q Now, I will ask you once again, do
9 you know of any investigation that he did
10 concerning the stormwater quantitative and
11 qualitative character of the present discharge
12 from the site compared to the quantitative and
13 qualitative discharge of stormwater with the
14 development of this site, which is proposed? Did
15 he do such an analysis?
16 A I believe the nature of the analysis
17 was of a qualitative nature as opposed to a
18 quantitative nature.
19 Q Well, do you know whether or not he
20 had any datum as to what the quality of the
21 present discharge from the site is into the Hudson
22 River?
23 A I know there are documents that
24 either are in your boxes or on my conference room
25 table that talk about the Hudson River, and so Dr.
Friedman - Cross - Segreto
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1 Bell, either through those documents or through
2 knowledge that he possesses from other sources,
3 possesses the knowledge of the Hudson River
4 constituents.
5 Q Do you contend that there is a
6 document either here or in your file back in the
7 office which does a qualitative analysis of the
8 finite stormwater discharge from Weehawken on this
9 site into the Hudson River?
10 A No, I do not.
11 Although you may find it difficult to
12 understand, one of the things that we consultants
13 do is to opine on subjects given a certain amount
14 of input data.
15 That's what Dr. Bell has done in this case.
16 Q Is something going to be done, to
17 your knowledge, to upgrade the quality of the
18 stormwater discharge into the Hudson River?
19 A Yes.
20 Q Pardon?
21 A Yes.
22 Q And is there some input that you
23 received from somebody as to what that qualitative
24 improvement is going to be?
25 A Well, I think we heard it this
Friedman - Cross - Segreto
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1 evening in direct testimony from Mr. Lanza. I
2 have heard it.
3 I have seen it in the plans that were
4 entered into exhibits with respect to inclusion of
5 the stormwater facilities that we heard about, the
6 netting facilities for the combined sewer
7 overflows that we heard about.
8 These are all facts that we have been aware
9 of in the preparation prior to this evening and
10 certainly as part of our preparation of this
11 document.
12 Q Is the macadam impervious surface,
13 which is proposed to be constructed on the 90
14 acres, going to be a substantial increase in the
15 square footage of the extant, the existing
16 impervious surface?
17 A I think I understand your question.
18 If you are asking me whether we are going
19 to have more asphalt after the project is
20 completed than we have now, then the answer is
21 yes.
22 Q Tell us quantitatively what the
23 increase is.
24 MR. KIENZ: I object.
25 The question has been asked about
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1 four or five times now in different ways
2 during the cross-examination.
3 Mr. Friedman has indicated that he
4 is not in a position to answer this. This
5 is a waste of time, and it's got to stop.
6 It's beyond the scope.
7 MR. DUNN: The witness has
8 already said he is not an engineer.
9 MR. SEGRETO: It is my time that I
10 am wasting.
11 MR. KIENZ: So noted.
12 MR. DUNN: That's fine.
13 Q Doesn't asphalt generate surface
14 petrocarbon discharge?
15 A Typically not.
16 Q Typically not?
17 A We see and the report contains and
18 you heard testimony from Mr. Lanza, I heard
19 testimony from Mr. Lanza, speaking to the
20 inclusion of frequent street cleaning.
21 This is one of the most -- one of the best
22 and most prevalent preventative techniques that
23 can be used by a municipality or a project sponsor
24 to improve events after rainstorms.
25 Q Have you ever heard of pretreatment
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179
1 at the point of discharge into the river of
2 stormwater?
3 A I have heard of the concept of
4 pretreatment, yes.
5 Q Is pretreatment of the surface water
6 discharge into the Hudson River part of this
7 proposed plan?
8 A I think the utilization of the
9 components that Mr. Lanza testified to is a form
10 of pretreatment, sir.
11 Q I am not talking about settlement
12 and things of that sort.
13 Do you know what a pretreatment facility is
14 on a surface water point discharge into a river?
15 A There are many kinds.
16 I don't know what you are trying to elicit.
17 Q What kind is being proposed here?
18 MR. KIENZ: He didn't testify to
19 that. Mr. Lanza testified to that.
20 It's beyond the scope of the direct.
21 MR. DUNN: He can testify as to
22 his understanding of what Mr. Lanza said.
23 MR. KIENZ: That was not the
24 question that was asked.
25 MR. DUNN: That's the only thing
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1 he can answer.
2 A What's being proposed for this
3 project, sir, is the inclusion of certain types of
4 net filters, as I understand them, to be part of a
5 new and improved CSO project, as well as an
6 inclusion of stormwater management facilities
7 which will utilize the form of sedimentation.
8 Q Now, sanitary sewage, do you deal
9 with that in your report?
10 A I believe it's mentioned, yes, sir.
11 Q Well, you do an analysis of its
12 impact, positive and adverse?
13 A Why don't you point me to the page
14 you are talking to.
15 Q I am asking you. This is your
16 report.
17 Have you done an analysis of the sanitary
18 sewer proposal here in terms of the benefits as
19 opposed to the downside disadvantages from an
20 environmental committee? Have you done that,
21 address it anywhere in this report?
22 A Yes, we have.
23 Q Tell me what page.
24 MR. DUNN: Page 6.
25 A Minimally, as Mr. Dunn points out,
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181
1 it's covered on Page 6.
2 Q Well, Page 7 is Table 1?
3 A Page 6.
4 Q Page 6.
5 Would it be correct to say that the entire
6 environmental analysis that you had done in your
7 EIS concerning sanitary sewage are the one, two,
8 three, four, five, six lines in D on Page 6? Is
9 that so?
10 A I don't think you asked a question.
11 I didn't hear a verb.
12 Q The question is: Isn't it true that
13 the entire extant of any discussion of the
14 environmental impact sanitary sewage of this
15 project are the six lines in Paragraph D on Page
16 6?
17 A I believe that's true, sir.
18 Q Uh-huh.
19 Now, any wetlands on this property?
20 MR. KIENZ: Objection.
21 He didn't testify to that.
22 MR. SEGRETO: I am going to ask him
23 specific questions about his report.
24 MR. KIENZ: Please don't yell at
25 me, Mr. Segreto. I have a right to object.
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182
1 MR. DUNN: Please state it in
2 the form of an objection.
3 MR. KIENZ: He testified to that.
4 It's redundant. He said there are no
5 wetlands on the site.
6 MR. DUNN: There has not been
7 cross-examination on the issue of wetlands.
8 We will allow the question.
9 A There are no wetlands on the site,
10 Mr. Segreto.
11 Q Pardon?
12 A There are no wetlands on the site,
13 Mr. Segreto.
14 Q Is any part of the 90 acres in the
15 floodplain?
16 A Yes, sir.
17 Q And property in a floodplain gets
18 pretty wet sometimes, doesn't it?
19 A It certainly does.
20 Q Now, is there, what, like five
21 percent of the 90 acres that's in the floodplain?
22 A No, I think large extents, and I
23 don't know the percentage, it's certainly greater
24 than five percent is in the floodplain.
25 Q Isn't it true that the entire 90
Friedman - Cross - Segreto
183
1 acres is in the designated floodplain? Do you
2 know?
3 A I don't know the answer.
4 Q Why don't we look on Page 23.
5 MR. DUNN: 40.
6 MR. SEGRETO: Page 23.
7 MR. DUNN: And 41 and 42.
8 MR. SEGRETO: Well, I am not as
9 fast as you are. I am only on Page 23 now.
10 Q Floodplains and floodways, doesn't
11 it say, "The subject property lies within the
12 historic flood plain of the Hudson River"?
13 A It says that.
14 That doesn't -- the English of that
15 sentence cannot be constructed to mean the entire
16 floodplain, however.
17 MR. GOULD: Hold on a minute.
18 Okay. Please continue.
19 A I will be glad to pull out the
20 source material, which is one of the items which
21 you articulated is in the box to the right of you,
22 and we can check it together.
23 Q Is there another section in which
24 you deal with floodplains?
25 I think the attorney for the board
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1 suggested another page.
2 What was it again?
3 MR. DUNN: Pages 41 and 42.
4 I am just doing this to expedite the
5 cross-examination.
6 MR. SEGRETO: I think that's very
7 helpful.
8 Q Doesn't it say at the top of 42 that
9 the "Construction of the planned development will
10 occur within the 100-year floodplain of the Hudson
11 River?
12 A Yes, we do.
13 Q You say a part of it or a portion of
14 the planned development will occur?
15 A I say the construction will occur
16 within the 100-year floodplain. I can't tell from
17 that.
18 As I indicated, the source map is to the
19 right of you in the boxes. I will be happy to
20 pull the source map out and check it right now as
21 we sit here.
22 Q Now, you say that "no significant
23 filling as proposed within the channel normally
24 flowed by the Hudson River."
25 You are going to do filling within the
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185
1 floodplain, aren't you?
2 A Yes, but not within the channel of
3 the river.
4 Q Anything else about floodplains?
5 Why don't we leave it. I don't think there is
6 anything else. I won't hold you to it.
7 Let me go back to the subject of critical
8 wildlife habitat.
9 Can you tell me how many wildlife species
10 identified are likely to be found on the subject
11 property, and I want to help for the sake of
12 expediting it -- go to Table 2, right after Page
13 18 -- and isn't it true that you identify 35
14 wildlife species identified or likely to be found
15 on the subject property?
16 A Okay. Table 2 deals with
17 invertebrate species captured on the property, and
18 I testified -- I think the board and the public
19 knows a good portion of the property lies under
20 water.
21 These are invertebrate species that were
22 not found on the land mass as we know it, but
23 rather to the east of either the bulkhead or to
24 the east of the riprap within what one might refer
25 to as the intertidal zone.
Friedman - Cross - Segreto
186
1 Q Do you think that the eastern
2 cottontail rabbits live in the water?
3 A Looking at Table 2 or component of
4 Table 2 --
5 Q And the gray squirrel, do you think
6 they live in the water, too?
7 A Mr. Segreto, there is no need to be
8 obnoxious.
9 I told you last time --
10 Q I am not being obnoxious.
11 A -- I told you as to the time.
12 Q That's one of the techniques of
13 cross-examination.
14 MR. KIENZ: Please don't argue
15 with the witness.
16 The board will take notice as to the
17 relevancy of those particular questions.
18 A Mr. Segreto, when I looked at Table
19 2 I was focusing on Page 3 of Table 2. You are
20 correct, the first page of Table 2 identifies
21 land-base species.
22 Q And there are 35 of them, aren't
23 there?
24 A I didn't count, but I will take your
25 word for it.
Friedman - Cross - Segreto
187
1 Q Take it on faith. I did.
2 Now, in addition to those, what you are
3 talking about are the Hudson River -- in the
4 river, that's the one that has that whole big
5 list. Right?
6 A That's correct.
7 Q And then, additionally, they go to
8 another one, which is invertebrate species.
9 Now we are making progress. Look at all
10 the pages I am skipping.
11 MR. DUNN: We only have 15 more
12 minutes.
13 MR. SEGRETO: I am sorry.
14 MR. DUNN: You only have 15 more
15 minutes.
16 MR. SEGRETO: Now -- you know -- I
17 want to do some marking of exhibits.
18 MR. DUNN: Unless you are going
19 to refer to the exhibits in your
20 cross-examination, Mr. Segreto, I don't
21 think we need to take time from your
22 cross-examination to mark them.
23 I will stay afterwards to mark the
24 exhibits.
25 MR. KIENZ: We have numbers
Friedman - Cross - Segreto
188
1 already filled out just in case, Mr. Dunn.
2 MR. DUNN: Unless you are going
3 to use exhibits in your cross-examination.
4 Q Now, with regard to -- I will be
5 talking about some of them.
6 In your correspondence file, do you recall
7 if you have any handwritten notes concerning
8 meetings with members of your staff,
9 representatives of the applicant, met with several
10 officials of this municipality, including members
11 of the planning board, members of the governing
12 body, and attorneys who represented the board in
13 private meetings? Do you have minutes of such
14 meetings?
15 A To the extent that there are minutes
16 of any meetings that you were in attendance, they
17 are included in files in front of you.
18 Q Do you recall any meetings that you
19 attended that included members of the planning
20 board, members of the governing body and other
21 appointed officials of the municipality?
22 A Yes.
23 Q Pardon?
24 A Yes.
25 Q And do you remember if there were
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1 substantive discussions about the plan?
2 A I remember the one time -- I am
3 thinking of one meeting in particular -- and it
4 talked about an adjacent property, not the
5 property --
6 Q I am sorry.
7 A -- it talked about an adjacent
8 property and not the property in question.
9 Q Is it your testimony that there have
10 been no nonpublic meetings attended by the
11 applicant and/or staff members with any members of
12 the planning board or the governing body or any
13 appointed officials of the municipality dealing
14 with this application for development? Is that
15 your testimony, sir?
16 A No, it's not.
17 Q Can you start telling me now, as
18 best you can, when the meetings occurred and who
19 were the members of the planning board, the
20 members of the governing body and the appointed
21 officials who attended those private meetings?
22 A Don't even know where to start with
23 your question. It's a compound question, and I
24 indicated in my earlier answer.
25 Q I will withdraw the question. It's
Friedman - Cross - Segreto
190
1 too convoluted. I will take your admonition. I
2 will withdraw the question.
3 About how many of these private meetings
4 occurred between applicant representatives and the
5 officials of the municipality, those private
6 nonpublic meetings, how many, about how many do
7 you know of?
8 A I was in attendance at one meeting
9 that there was a number of people.
10 Who they represented -- I don't know who
11 everybody represented.
12 Q Do I take it that you only know of
13 one such meeting?
14 A I was in attendance at one meeting.
15 Q Do you know of any other meetings
16 with the public officials of the municipality,
17 with representatives to discuss this application?
18 A The answer to that question is no,
19 and the answer to the prior question is I can't
20 characterize your use of the word plural,
21 "members."
22 I was at one meeting, and I don't know all
23 the parties that were at that meeting.
24 Q Were there any officials of the
25 municipality present at that one meeting that you
Friedman - Cross - Segreto
191
1 know about?
2 A Yes.
3 Q Who?
4 A The mayor.
5 Q Where did the meeting occur?
6 A At the offices -- at ARCORP offices.
7 Q Where?
8 A In the banana building.
9 Q When did the meeting occur?
10 A A month and a half ago, two months
11 ago, three months ago.
12 Q Was this application and this site
13 discussed?
14 A The purpose of the meeting was to
15 discuss a contiguous property.
16 Q Which contiguous property?
17 A Site 147 Douglas Holdings, owned my
18 Hartz, I believe, owned by Hartz.
19 Q Is that Douglas property going to
20 be, in any way, implicated in this development?
21 A I am not sure I understand what your
22 use of the word "implicated" means, sir.
23 Q Pardon?
24 A I don't understand your use of the
25 word "implicated."
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1 Q Well, is that part of this site, has
2 any connection with this site?
3 A The connection derives from a
4 mandate by the State of New Jersey related to a
5 cleanup on the adjacent parcel that involves a
6 small piece of this particular property.
7 The Douglas holdings, as I understand it,
8 is responsible for cleaning up.
9 Q Now -- and I will leave this subject
10 of these meetings, and I may return to them in a
11 different fashion sometime in the impending future
12 -- but is it your explicit testimony that the only
13 meeting in which any official of the municipality,
14 in which a representative of the municipality was
15 present, that the only meeting dealing with this
16 application or any aspect of it was the one
17 meeting that you just told us, to your knowledge?
18 A No. I can't use the word
19 "explicit."
20 It's my recollection, as I indicated, there
21 are thousands of pages of documents that I tried
22 faithfully to review prior to coming through these
23 meetings and testimony.
24 I certainly don't have the ability to have
25 a recollection -- I wish I did -- of every
Friedman - Cross - Segreto
193
1 meeting, every piece of paper, and every page of
2 every report.
3 I recollect the one meeting. There could
4 have been others. I don't know. I don't
5 recollect any others, but I cannot use the word
6 "explicit."
7 Q If you or a remember of your staff
8 attends a meeting dealing with the particular
9 application, is it the policy of your office to
10 have that staff member or representative of the
11 company prepare a memoranda for the file?
12 A That's a normal course, yes.
13 Q Let us assume that there is a
14 meeting with people but it doesn't include a
15 member of the official family of the municipality,
16 but if you go to somebody's office, or one of your
17 people go, is it the policy of the office that
18 they write up a memo concerning the meeting:
19 i.e., who would attend and a brief synopsis of
20 what transpired?
21 A Yes, sir.
22 Q And if there are such reports, would
23 they be contained in your correspondence file?
24 A Yes, they would.
25 Q So would it be correct to say that
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194
1 the three manila envelopes that you have given to
2 me contain all of the correspondence of your
3 office related to this development?
4 A All the correspondence excluding
5 financial matters between myself and my company
6 and my client.
7 Q I am not talking about those. Those
8 are privileged, and I am not interested in that.
9 A The answer is yes.
10 Q All right. So that would mean that
11 any meeting which your staff or yourself attended
12 with others to discuss this matter, we should find
13 in these three volumes the minutes of those
14 meetings. Right?
15 A In fact, there are four volumes.
16 The answer is yes.
17 Q Four volumes -- I am sorry -- there
18 are four. That would be correct. Right?
19 A Correct.
20 Q Have you looked at these files
21 recently?
22 A Yes.
23 Q Do you have any idea how many
24 written memoranda of such meetings are actually
25 contained in here?
Friedman - Cross - Segreto
195
1 A Yes.
2 Q How many?
3 A Plus or minus ten.
4 Q And your testimony is that in the
5 entire preparation and evolution of all of the
6 preparation for this project, there have only been
7 ten meetings in which representatives of the
8 applicant and the experts have attended, only ten
9 of them. Is that your testimony?
10 A That's my testimony.
11 MR. DUNN: Mr. Segreto, the time
12 has expired for your cross-examination.
13 MR. SEGRETO: Well, I would
14 respectfully suggest that I am asking
15 questions which are relevant and important
16 and, I believe, that the board should not
17 arbitraily suspend them.
18 MR. DUNN: I haven't heard a
19 relevant question for the past ten minutes,
20 and the board has a curfew of 11:30, so why
21 don't we give you the extra five minutes to
22 finish up.
23 MR. SEGRETO: I will quietly
24 remonstrate, but I think if the board cuts
25 off my cross-examination it will be acting
Friedman - Cross - Segreto
196
1 arbitrarily and it will be denying me the
2 right of an efficacious cross-examination,
3 but nonetheless --
4 Q Now, with regard to the remedial
5 investigation of workplans, have you submitted any
6 of them to this board?
7 A Yes.
8 Q Have you submitted all of the ones
9 that are in your office?
10 A To the best of my knowledge, every
11 document that you reviewed yesterday is contained
12 in those boxes have been submitted to the
13 municipality of Weehawken.
14 Q And it is your testimony that none
15 of the documents that are in these two boxes are
16 documents that have not been submitted to the
17 planning board? That's your testimony?
18 A Testimony was to the municipality of
19 Weehawken.
20 Q Well, are you submitting documents
21 concerning this application to a different board
22 other than the planning board?
23 A I am submitting documents to parties
24 that I have been requested to send documents to.
25 I am submitting documents to attorneys who forward
Friedman - Cross - Segreto
197
1 documents.
2 You made a comment yesterday in jest that
3 the first letter or the latest letter in the
4 correspondence file was to Weiner & Lesniak, in
5 which I transmitted three copies of my
6 Environmental Impact Statement or other documents
7 to that firm in response to your question. I
8 don't know where those documents went or to whom
9 they went.
10 Q Now, one of the documents which you
11 have in your file is a January 27, 1995, Final
12 Remedial Action Workplan, Group 11, or is that
13 "II," Site 147, Hartz Mountain Industry, Inc.,
14 date that said January 25, 1995.
15 Now, this particular document is indexed in
16 your table as one of the documents that you used
17 in connection with your Environmental Assessment
18 Report?
19 A That's correct.
20 Q And is there any part of this
21 particular report that you relied upon in coming
22 to any of the conclusions or expressions of net
23 opinion which are contained in your EIS?
24 A The answer is yes.
25 Q Doesn't this particular plan refer
Friedman - Cross - Segreto
198
1 to many, many contaminants which exceed the
2 residential criteria?
3 A That may.
4 We only utilized that portion of that
5 report which discussed the overlapping testing
6 that consultants that prepared that report
7 conducted on a small component of the southerly
8 most portion of the Port Imperial South, LLC,
9 property.
10 Q Well, as a matter of fact, somebody
11 has yellow highlighted different sections of this
12 report. Isn't that so?
13 A I am sure that's so. You are
14 looking at it.
15 Q Was this final Remedial Action
16 Workplan ever approved by DEP?
17 A The answer to the question is yes.
18 However, in the box there are several
19 versions of those documents, and one of those
20 versions received the final approval from DEP. I
21 am not sure whether it was the one in your hand or
22 a different one, that box.
23 Q Do you have in the box any letters
24 of final approval of a Remedial Action Workplan by
25 Hartz Mountain Industries?
Friedman - Cross - Segreto
199
1 MR. DUNN: Does it relate to
2 this property?
3 MR. SEGRETO: Pardon?
4 MR. DUNN: Does this relate to
5 this property? You have the report. Does
6 it relate to this property?
7 MR. SEGRETO: Well, all I can tell
8 you that I asked for documents which they
9 relied upon in connection with their EIS,
10 and it is listed in their bibliography.
11 MR. DUNN: Right. But the
12 question I asked to you, Mr. Segreto, since
13 you seem to have examined the report, is
14 whether or not it relates to this property,
15 and if it doesn't relate to this property,
16 questions about whether the Remedial Action
17 Workplan was approved, to my mind, are
18 irrelevant.
19 MR. SEGRETO: If it doesn't relate
20 to the property, but yet they have averted
21 to it in the EIS and have included it as
22 one of the documents they relied upon, and
23 it was produced as part of the file on this
24 case, it is manifest that I have a right to
25 examine him concerning it, but if you say
Friedman - Cross - Segreto
200
1 that it is irrelevant, I won't ask him
2 another question about it.
3 MR. DUNN: I haven't heard a
4 proffer of relevancy, and it is now 11:30.
5 The Chairman, I think, has a
6 statement.
7 MR. GOULD: Yes. We are going to
8 stick to this 11:30 deadline that we have,
9 and for those members of the public who are
10 not represented by Mr. Segreto, if they
11 have questions, Mr. Kienz, you will be able
12 to have this witness return at our next
13 meeting.
14 MR. KIENZ: I think the answer is
15 he is coming back to testify to different
16 things, Mr. Chairman, but I believe that we
17 had opened it to questions of him and we
18 closed it down.
19 I don't think there are any more
20 questions of Mr. Friedman by any represent
21 -- not represented people.
22 Unless I am mistaken, I think Mr.
23 Friedman, this segment of the testimony is
24 complete.
25 I don't think there is a second bite
Friedman - Cross - Segreto
201
1 of the apple. He will be back on the air,
2 but not as to this segment, Mr. Chairman.
3 I think we are done with Mr. Friedman. I
4 think it's the way it went.
5 MR. DUNN: That's what I
6 thought.
7 You said somebody has questions.
8 MR. GOULD: There is an
9 indication of questions.
10 Would you be willing to entertain
11 any additional questions from the public at
12 the next meeting?
13 MR. DUNN: No, let's get them
14 done now.
15 MR. GOULD: Get them done now.
16 MR. TURNER: How many questions?
17 See how many.
18 MR. GOULD: Can I see a show of
19 hands of any members of the public who have
20 a question tonight for this witness, a show
21 of hands?
22 We have one person with a question.
23 MR. BARSA: You have three.
24 MR. GOULD: We are going to --
25 THE PUBLIC: Can we ask our
202
1 questions at the next meeting?
2 MR. GOULD: That's what I was
3 trying to do.
4 MR. TURNER: Do it when he comes
5 back on the air. Can you hold your
6 questions when Mr. Friedman comes back on
7 the air, which may be a few meetings? The
8 questions are still valid. Wait until he
9 is called back.
10 MR. DUNN: Is that all right,
11 Mr. Sherman?
12 Okay. All right.
13 THE PUBLIC: My question will be
14 answered very quickly, I would imagine.
15 It's relevant to tonight's proceeding.
16 I think we all sat very patiently
17 tonight. I think we should have the
18 opportunity at this meeting and future
19 meetings that we speak at the meeting.
20 MR. DUNN: I understand.
21 MR. SHERMAN: If it is too late for
22 every one, I will accede to the wishes of
23 the public in general. I think from now on
24 we should certainly have the opportunity to
25 comment or ask questions.
203
1 MR. KIENZ: Mr. Sherman, did you
2 have a chance?
3 MR. GOULD: At the previous
4 meeting.
5 MR. KIENZ: Absolutely.
6 Can't keep going back and forth.
7 MR. DUNN: He will be back for
8 air quality.
9 MR. GOULD: Okay. We will take
10 your questions at that meeting then. Okay.
11 MR. SEGRETO: Mr. Chairman, just
12 let me put on the record, so there is no
13 misunderstanding, I have more questions
14 that are related to the documents that have
15 been produced, and the documents that have
16 been given to me are part of the file. The
17 witness has testified that these documents
18 were used in connection with the
19 preparation of his reports, and I believe
20 under those circumstances that I am
21 entitled to have an explanation of the
22 documents.
23 We will be -- we will be at some
24 point marking these as exhibits so that the
25 record will reflect the nature and extent
204
1 of the documents that were relied upon and
2 the fact that I had questions related to
3 those documents, and I most respectfully
4 ask that the rule -- an arbitrary rule of
5 two times not be implemented because it is
6 in contradiction to everything that the
7 courts have said about limitation on the
8 rights of cross-examination of an objector.
9 MR. DUNN: All right. I am not
10 sure that you have ever cited a specific
11 case to me on that subject, but it is my
12 opinion this is a valid rule, and if your
13 application is for an extension of your
14 cross-examination for good cause, I would
15 point out to the board that there was
16 substantial time wasted tonight with
17 questions relating to things that the
18 witness testified once that he knew nothing
19 about, and then the same question was asked
20 seven or eight times about having medical
21 testimony, the witness had no capability
22 about.
23 There were questions about squirrels
24 living in the water that were bordering on
25 the ludicrous, and so it's my opinion that
205
1 this questioner has not shown good cause
2 for an extension of the time.
3 MR. GOULD: This board will
4 accept the ruling of its counsel.
5 MR. SEGRETO: I must say, I think
6 it's unfortunate that an experienced
7 attorney who occupies a fiduciary
8 responsibility would characterize questions
9 which an attorney of some considerable
10 experience in this field has, to
11 characterize the questions as being
12 ludicrous. I find that offensive and
13 inappropriate.
14 I take umbridge, but I understand
15 that's his point of view, but sometimes an
16 attorney who occupies a fiduciary point of
17 view should not be contumacious of the
18 process, and to say about a member of the
19 bar that he has asked ridiculous questions,
20 particularly when the witness had testified
21 that the endangered species were people who
22 habitate the water, and that precipitated
23 my questions.
24 MR. DUNN: The witness didn't
25 testify about an endangered species at all.
206
1 The witness testified about species,
2 and to ask the question of a witness about
3 squirrels in the water is -- in my opinion,
4 my opinion, is a waste of this board's
5 time.
6 If a judge wants to review it on
7 that basis, we will see what a judge has to
8 say about it.
9 MR. SEGRETO: We will see at the
10 end of this what cumulative inhibitions
11 have been placed upon my ability to
12 cross-examine.
13 I have had experience in this field
14 and, counsel, I would respectfully suggest
15 that you leave yourself open to persuasion
16 between now and the next month, and I
17 promise to you that I will submit to you a
18 letter brief, and I promise to you I will
19 cite a minimum of 40 cases which deal with
20 the subject of an arbitrariness of a land
21 use board not permitting the attorney for
22 an objector to have an efficacious
23 cross-examination to investigate and
24 cross-examine on the predicates which form
25 the foundation for the net opinion
207
1 expressed by the board. Keep an open mind.
2 I will send the letter to you with a
3 copy to my colleague, and if you still are
4 of the opinion, maybe at the next board
5 meeting you can reaffirm that, and my
6 understanding is that when the attorney
7 speaks from the protocol that I understand
8 that constitutes a ruling of the Chair, so
9 I understand that what the attorney has
10 said to be a ruling of the Chair, that my
11 cross-examination is over and knowledge
12 doesn't help.
13 Maybe, maybe you might be persuaded
14 by what the Supreme Court and the Appellate
15 Division have said time and time again on
16 this subject. I will take the trouble to
17 submit it to you. I hope you will read it.
18 I hope you will be persuaded to change your
19 point of view.
20 MR. GOULD: Okay. I will take a
21 motion.
22 MR. KIENZ: Mr. Chairman, a
23 couple of things I have to do in order to
24 preserve the record.
25 MR. TURNER: Before you do, Mr.
208
1 Chairman, maybe some of the board members
2 will leave the closing time from seven to
3 11, being sufficient time.
4 Is that possible, Mr. Dunn?
5 MR. DUNN: Sure. You can pick
6 any -- any closing time that you want.
7 Keep in mind, and I don't like to be
8 here this late either, particularly since I
9 have a half-hour drive home in the best of
10 circumstances, but keep in mind that you
11 have a 120-day time limit within which to
12 act.
13 MR. TURNER: We always spill over.
14 If we end at 11, it will probably be 11:15,
15 11:20. Now it's going to be 12.
16 MR. DUNN: Take a motion to
17 change the rule on curfew.
18 MR. CABRERA: Mr. Chairman, I make
19 the motion.
20 MR. DUNN: To change it to 11
21 o'clock.
22 MS. KRAVITZ: I second it.
23 MR. GOULD: Second.
24 MS. KRAVITZ: Second.
25 MR. GOULD: Roll call, please.
209
1 THE SECRETARY: Mr. Barsa.
2 MR. BARSA: Yes.
3 THE SECRETARY: Mr. Turner.
4 MR. TURNER: Yes.
5 THE SECRETARY: Mr. Cabrera.
6 MR. CABRERA: Yes.
7 THE SECRETARY: Mr. Gould.
8 MR. GOULD: Abstain.
9 THE SECRETARY: Ms. Kravitz.
10 MS. KRAVITZ: Yes.
11 MR. DUNN: Mr. Kienz, before we
12 adjourn, do you have something?
13 MR. SEGRETO: A question to Mr.
14 Dunn.
15 Mr. Dunn, how are we going to handle
16 the marking of the exhibits? If there is
17 no objection here, the attorney for the
18 applicant has suggested that we could mark
19 these and then confirm it at the next
20 meeting on the record.
21 MR. DUNN: There is no objection
22 to -- from me on that.
23 MR. KIENZ: His cross-examination
24 is over. The meeting is over.
25 MR. DUNN: No, he wants to mark
210
1 exhibits, and I told him that we would --
2 he would -- he could mark exhibits after
3 the fact based upon -- so he didn't use up
4 his cross-examination time. He can mark
5 the exhibits. I am not extending time for
6 cross-examination.
7 You and he can mark the exhibits and
8 confirm it on the record the next time.
9 MR. KIENZ: All right. It's not
10 going to happen tonight.
11 A couple of things, Mr. Chairman.
12 Mr. Dunn indicated there are time frames.
13 We are ready, willing and able to proceed
14 as quickly as possible.
15 Sitting through cross-examination
16 doesn't hone in on the merits of the
17 application when these things are supposed
18 to be before the DEP, when you have
19 environmental consultants really is a waste
20 of precious board and public time,
21 especially in light of the fact that there
22 are other members of the public here that
23 are not represented by this attorney.
24 That issue aside, I always promised
25 you when we come back, I believe, the next
211
1 meeting, Mr. Dunn, or, Mr. Chairman, is
2 December 2nd, and I would assume the first
3 thing we are starting with is
4 cross-examination of Mr. Lanza, and then my
5 next witness will be Elizabeth McLoughlin,
6 who will finish up some of the other agency
7 permits under the Environmental Impact
8 Statement requirement, and then David
9 Listokin on the Physical Impact Analysis.
10 MR. DUNN: But I take it that we
11 have a stipulation that between now and
12 December 2nd whatever files of these
13 witnesses that Mr. Segreto wants to see,
14 you are going to make them available to
15 him.
16 MR. KIENZ: Yes. He has the
17 right based on previous decisions of the
18 board. We accede to those.
19 We don't expect -- we were very
20 courteous in the beginning, but the clock
21 is running. This one has got to get
22 moving.
23 Thank you.
24 MR. GOULD: Okay.
25 MR. KIENZ: I am going to ask
212
1 that the application be carried until
2 December 2, 1999, no further public notice
3 being required, in this room, starting at
4 seven and terminating at 11.
5 MR. GOULD: Okay. I will take a
6 motion to adjourn.
7 MR. BARSA: I will move to
8 adjourn.
9 MR. GOULD: Second.
10 MR. CABRERA: Second.
11 * * *
12
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16
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213
1 C E R T I F I C A T E
2
3
I, PHILIP A. FISHMAN, a Notary Public and
4
5 Certified Shorthand Reporter for the State of New
6 Jersey, do hereby certify that the foregoing is a
7 true and accurate transcript of the hearing as
8 taken stenographically by and before me at the
9 time, place and on the date hereinbefore set
10 forth.
11 I DO FURTHER CERTIFY that I am neither a
12 relative nor employee nor attorney nor counsel of
13 any of the parties to this action and that I am
14 neither a relative nor employee of such attorney
15 or counsel, and that I am not financially
16 interested in the action.
17
18
19 Dated _______________ ________________________
20 PHILIP A. FISHMAN, C.S.R.
A Notary Public of the
21 State of New Jersey
22
23
24
25

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