December 10, 2025, Planning Board Special Meeting - WEHI Transcript

11 of 55 sheets Page 41 to 44 of 144 01/14/2026 10:36:25 AM 41 you mean by this next sentence. "We agree that that1 would be an extreme event which may justify a lower2 Factor of Safety upon review of relevant standards."3 Yes, I think, as I testified at the last meeting,4 A. there is nothing, there is nothing in the data that has5 been provided that indicates that this event could6 actually occur. But for other extreme events, such as a7 seismic case, and this would be equivalent to a, what's8 called a sudden drawdown for a dam, those safety factors9 in the order of 1.1 and 1.2 are usually considered10 acceptable.11 What does it mean by saying, when you said, "We12 Q. agree." What were you agreeing with?13 I'm sorry, we agreed what?14 A. It says, "We agree that that would be an extreme15 Q. event which may justify a lower Factor of Safety."16 Yeah, we both agreed that the incident, that the17 A. loading case that I was talking about is an unlikely18 event.19 Where did you reach this agreement?20 Q. On the phone conversation.21 A. Where my expert was excluded?22 Q. Well, I --23 A. "Yes" or "no"?24 Q. Yes. I didn't intentionally exclude him.25 A. 42 You Didn't bother to call him, right?1 Q. You know where Princeton Hydro is, don't you?2 Yes, I do.3 A. Okay.4 Q. So you expressed an agreement on a point of5 substance in terms of the Factor of Safety with the6 applicants engineer in a private conversation in which7 my engineer was not part of it, is that correct?8 That's correct.9 A. Thank you.10 Q. And this conversation occurred prior to your11 December 3 testimony, isn't that correct?12 Correct.13 A. And when I cross examined you on these issues on14 Q. December 3 I didn't know about these private discussions15 at that time because you only disclosed it tonight,16 correct?17 Well, I gave you, I think, the previous18 A. conversations that were entered as an exhibit are19 included in that chain.20 Exhibit O-36 was a December 1 and December 221 Q. e-mail. I am referring to the November 14 e-mail which22 was not?23 Oh, okay. If you're referring to November 14,24 A. no.25 43 So when I cross-examined you on some of these1 Q. very subjects on December 3, I didn't know your opinion2 was the product of a private discussion with Langan and3 Anderson, did I?4 That was my opinion. It wasn't Langan's opinion.5 A. You said, "We agree with you."6 Q. Oh, I said a safety

now your opinion2 was the product of a private discussion with Langan and3 Anderson, did I?4 That was my opinion. It wasn't Langan's opinion.5 A. You said, "We agree with you."6 Q. Oh, I said a safety factor of 1.2 would be7 A. adequate and we agreed.8 So in your independent evaluation of my clients9 Q. expert report and their clients expert report you10 reached an agreement, an understanding on a point of11 substance when one side was not party to the discussion12 and you allowed me to cross-examine you without13 disclosing you had those meetings, didn't you?14 I think before the last cross-examination I had15 A. given you those papers that summarized the discussion in16 it.17 You had given me Exhibit O-36, the December 1 and18 Q. December 2 e-mails. You didn't give anything else to me19 on that occasion, did you?20 Okay. I thought the whole chain was attached.21 A. No, it was not.22 Q. I'm sorry, that's my mistake.23 A. So when I cross-examined you on these very24 Q. subjects I could not have known that you had reached an25 44 agreement with Langan on this very point, could I?1 You couldn't, no.2 A. I note that these e-mails begin November 13,3 Q. after your November 10 testimony. From the time you did4 your inspection -- strike that.5 When was your visual inspection of the site? If6 you don't remember the exact date, approximately?7 I don't remember the exact date.8 A. Do you remember approximately when you went?9 Q. Must have been a couple weeks before the first10 A. meeting. It -- I don't know if I have it in my report,11 whether I recorded the date. We visited the site, the12 area of the site in question October 2, 2025, along with13 Paul W. Anderson, PE, the applicants site engineer, to14 evaluate the conditions along the ridge in relation to15 the descriptions contained in the applicants and the16 objectors reports.17 Now, what you didn't say in that report was that18 Q. you had these private discussions, did you? But you19 couldn't have because they occurred afterwards.20 No, I said we were there with Mr. Anderson.21 A. What's the date of your report?22 Q. October 28.23 A. But you never supplemented your report to24 Q. identify your later discussions with Anderson and25

01/14/2026 10:36:25 AM Page 45 to 48 of 144 12 of 55 sheets 45 Langan, did you?1 No, because --2 A. "Yes" or "no"?3 Q. The subsequent discussion I think took place4 A. after that. After the report.5 Correct. But you never supplemented that report6 Q. to disclose those discussions, did you?7 No.8 A. Okay.9 Q. Now, before November 13 were there any other10 e-mail exchanges, texts exchanges, letter exchanges of11 any sort between yourself and your staff at CME?12 Yourself and anyone at Anderson and Langan.13 I'm sorry, can you repeat the question again.14 A. Certainly. Before November 13, that first e-mail15 Q. in Exhibit O-38, were there any other written16 communications of any kind, e-mail, text, letters, memo,17 etc., between CMEs staff, yourself and anyone at18 Anderson or Langan?19 We had -- I had no subsequent discussions with20 A. anybody at Langan or Anderson before I prepared the --21 between the time I visited the site and when I prepared22 the report.23 That's not an answer to my question. Before24 Q. November 13 do you have any other written communications25 46 of any kind?1 I don't recall.2 A. Well, how would we know?3 Q. I will have to check, I guess. Whatever, you4 A. know, I'm instructed to do I will do.5 I can't instruct you, I am saying as6 Q. cross-examiner I need to see that. So are you willing7 to produce it?8 If it exits I will produce it.9 A. Do you recall, sitting here today, whether10 Q. between the date of your report on October 2 and11 November 13, you had any written exchanges of any kind12 between Anderson and Langan and anyone at CME?13 I don't recall.14 A. Now, the same question I am going to ask you15 Q. concerning phone discussions or zoom discussions.16 Between the date of your report and the first November17 13 e-mail in Exhibit O-38, did you have any phone18 discussions, personal meetings or zoom meetings between19 yourself and anyone at Langan or did anyone at CME20 concerning this case?21 I can't recall.22 A. Now, if you did have those personal discussions23 Q. you would have memorialized them to your supervisor,24 correct?25 47 I am not 100 percent sure. I can't say that1 A. necessarily that I did.2 Will you make that search?3 Q. Yes.4 A. Now, prior to the date of your October 2 report,5 Q. not prior to its preparation but prior to the date of6 October 2, did you have any other written communications7 of any kind, again

h?3 Q. Yes.4 A. Now, prior to the date of your October 2 report,5 Q. not prior to its preparation but prior to the date of6 October 2, did you have any other written communications7 of any kind, again e-mail, text, letters, etc., from8 yourself and anyone at CME and anyone at Anderson and9 Langan?10 Maybe just to confirm the appointment. The time11 A. of the appointment at the site. We were referred to12 Anderson by the town engineer --13 I understand.14 Q. -- to arrange for a meeting. So I might have.15 A. Might have been one of those, are you available? When?16 Back and forth like that to me.17 Was that an e-mail, a phone call, how did the18 Q. engineer speak with you?19 Sorry.20 A. How did the engineer communicate with you, by21 Q. e-mail, phone call, any other kind of writing?22 I think the engineer e-mailed us that we would,23 A. that we would -- she referred us to Mr. Anderson. She24 may have made the appointment, I don't recall exactly.25 48 When you had that appointment made had you1 Q. consulted with anyone at the board, such as Ms.2 McGovern, about doing that meeting with the applicants3 engineer?4 Not with Ms. McGovern for that meeting. We5 A. contacted the town engineer and that was the arrangement6 that was made for us to get to the site.7 Perhaps you can help me. Is it December -- well,8 Q. let me go back.9 You testified on December 3, correct?10 Yes.11 A. Okay.12 Q. And when we left here on December 3 you also knew13 you would be coming back here to continue14 cross-examination?15 Yes.16 A. And on the December 5, just two days later, you17 Q. received a communication from Mr. Seel, again copied to18 the same general group, attaching summaries for the19 shallow slope stability cases you requested, assuming20 full saturation and slope parallel seepage and output21 files from ACS of their NJDEP-approved groundwater22 mounding analysis. And you then, there was then a23 discussion in substance by Mr. Seel of his view of what24 all this means. Do you recall that e-mail? It's in25

13 of 55 sheets Page 49 to 52 of 144 01/14/2026 10:36:25 AM 49 front of you. It's dated December 3 -- I'm sorry.1 December 5. It's the third page in the packet.2 The third page.3 A. Bottom half says, "Sam, as requested on4 Q. 12/3/2025, attached are."5 Okay. Yes.6 A. And there's a date of December 5 just above that.7 Q. Now, at that point you had already disclosed that8 there was a December 1 and 2nd communication, which I9 didn't know about, and I asked you to produce that,10 which you did. So you already knew by the time you got11 the December 5 e-mail that representing the objector I12 wanted to see what communication you had with the other13 sides engineer, correct?14 I assumed that's why I prepared the package15 A. tonight.16 But you didn't offer it until I started asking17 Q. questions about what communication you had. Why didn't18 you just offer it right off the board as a summary, as19 supplemental to your testimony?20 I, I, I was going to begin discussing it and I21 A. assumed you would ask, as you did the last time.22 Why didn't just forward it to -- oh, so you23 Q. depended on my asking it and if I happened to not24 realize you had additional communication what was I25 50 supposed to do?1 I, I had no intention of not disclosing anything2 A. we're talking about and in my testimony tonight.3 Why didn't you immediately send that to me and4 Q. Mr. Goll at that point when you received this5 communication Friday, December 5?6 I was, I was continuing with a series of7 A. conversations in order to get additional submittals from8 Langan.9 Well, you got one on December 5, why didn't you10 Q. immediately forward it to Mr. Goll? You knew how to11 find Mr. Goll, he's your colleague. I'm certainly not12 unknown to you either. So why didn't you forward it?13 I didn't realize that I should have.14 A. After I'd criticized you for not forwarding15 Q. December 1 and 2nd e-mails you thought you didn't need16 to forward this?17 I brought it with me because I thought it would18 A. be required.19 Could you repeat that?20 Q. I brought it with me because I thought it would21 A. be required.22 But I don't have time to study it standing here23 Q. today, and my engineer doesn't have time to go over it,24 does he?25 51 No.1 A. Had I gotten it on Friday I could have taken care2 Q. of that, couldn't I?3 It wasn't resolved on Friday. We -- I told them4 A. I need additional

esn't have time to go over it,24 does he?25 51 No.1 A. Had I gotten it on Friday I could have taken care2 Q. of that, couldn't I?3 It wasn't resolved on Friday. We -- I told them4 A. I need additional information.5 Okay.6 Q. So on Friday, December -- on Friday, December 5,7 six hours later -- strike that.8 Five hours later you wrote to Mr. Seel and you9 stated, "Our initial comments are as follows." Would10 you turn to the page, it's the second page in the11 packet.12 So --13 A. I'll read it. Follow along with me. It says,14 Q. "Hello, Mark, Our initial comments are as follows." So15 you now present in items 1, 2, 3, and 4 several comments16 on the materials he sent to you, isn't that correct?17 That is correct.18 A. Five hours after he sent them?19 Q. Yes. We were working on other projects and20 A. there's other things to do.21 Not criticizing five hours, it was remarkably22 Q. expeditious, don't get me wrong.23 I was hoping to get the information earlier this24 A. week to get it resolved.25 52 Yes, but again, now you write later that day with1 Q. your own opinion about what they gave you and you still2 don't copy Mr. Goll or me, why is that?3 I didn't realize I had to.4 A. After I said at the prior meeting you needed to?5 Q. I -- it didn't register with me when this6 A. conversation started, certainly if Mr. Goll had called7 we would have commenced a discussion with him as well.8 We never received a call.9 Are you suggesting that profession of engineering10 Q. involves a degree in mind reading? How is he supposed11 to know you're having these discussions?12 Well, as far as last Friday you had already seen13 A. other discussions.14 So he's supposed to assume, after I criticized15 Q. you for not disclosing your earlier discussions, that16 you were again having ex parte discussions with the17 other side, is that what you're saying?18 That he was supposed to assume, no. But there19 A. were, he could have called about a report. He could20 have initiated a chain of communication as well.21 So in other words, he is still supposed somehow22 Q. be guessing you're having these discussions with the23 other side and call to say, what other discussions are24 you having off the record with the applicants engineers,25

01/14/2026 10:36:25 AM Page 53 to 56 of 144 14 of 55 sheets 53 Mr. Kleinberg. He's supposed to guess that that's1 happening, is that what you're saying?2 No.3 A. I'm sure you're not because it would be absurd.4 Q. Now, on Tuesday, December 9, after a restful5 weekend, Mr. Seel writes back to you in response to your6 four numbered points that you sent on December 5. And7 this is sent at 4:52 PM on Tuesday, December 9.8 Yesterday, after the close of business essentially. And9 he gives a detailed set of explanations in response to10 your four points. And those appear, he says, in red11 italic font below. Now, in the photocopies it's12 italicized in light gray. Now, I can't really study all13 this standing here because it's fairly extensive. But14 you would agree that you received on Tuesday these15 comments and didn't even think to send them to me that16 evening so I can have my engineer look at it during the17 day today?18 Talking about yesterday evening?19 A. Yeah. Why didn't you just forward them first20 Q. thing or last night and I would've immediately sent them21 to my engineer. You didn't give me that opportunity,22 why?23 Can I read the paragraph. The second paragraph24 A. on that third page?25 54 The third page of the document.1 Q. MS. McGOVERN: Yes.2 MR. AFRAN: The second paragraph.3 MS. McGOVERN: If you want to read it you4 can.5 The submittals -- I'm recommending what they6 A. should submit to resolve the issues that we had raised.7 And I said, "The submittals should be submitted through8 whatever channel has been established by the board for9 this purpose. Based on the last meeting, the submittals10 and response will be requested by the We Care team in11 order to resolve the slope issues. We will review them12 as soon as possible when they are received."13 So you knew then that we wanted the stuff, why14 Q. not just send it to us? There's no secret here. Why15 did you depend on some unknown board procedure to16 somehow get it to us when you could just have sent an17 e-mail in three seconds?18 I didn't get a response from them until yesterday19 A. afternoon.20 So why do you need the applicants engineer to21 Q. give you permission to communicate with my engineer when22 you're doing an independent evaluation?23 I was waiting for him to resolve the technical24 A. issues.25 55 Well, it would have been useful for us to at1 Q. least have known your

ith my engineer when22 you're doing an independent evaluation?23 I was waiting for him to resolve the technical24 A. issues.25 55 Well, it would have been useful for us to at1 Q. least have known your questions, so when these were2 finally resolved -- answered anyway -- well, are they3 resolved or are they just answered? You got them last4 night, all five.5 They're just answered. They don't agree with the6 A. recommendations that I have been making so they were7 just answered. Did not make, he did not make a --8 Well, if you had sent them to us in the morning I9 Q. could've at least had my engineer look at it and guide10 me when I cross-examined you. The pattern is -- there11 is a whole pattern of this, not just one day.12 Before I move on to another subject, do you13 understand the materials I am asking you for? The14 e-mails I referred to that may or may not exist. The15 e-mails memorializing phone calls on discussions you had16 where you sent the supervisor. Things of that nature?17 I do.18 A. Thank you.19 Q. I don't know that we can close this today.20 I want to go back to the November 14 e-mail,21 which summarizes discussions with the Anderson/Langan22 people. I am trying to understand the meaning of one23 phrase. "The analysis with seepage parallel to the24 slope." What does that refer to? Could you explain it.25 56 That is exactly that, a seepage. It's1 A. groundwater moving parallel to the slope.2 Moving down the slope?3 Q. Down the slope.4 A. Okay.5 Q. So groundwater that comes from the top of the6 ridge in many instances will travel down the slope?7 Right. And it's being, and in the case of heavy8 A. rainfall it's being supplied by rain falling directly on9 the slope.10 So we have both runoff, especially in heavy11 Q. storms, and we have direct infiltration in heavy storms12 on the slope itself?13 Right. And these were conditions that none of14 A. the two engineers had brought up that we asked them to15 address.16 Well, that's why it's so very important we be17 Q. given copies of these because you're raising new issues.18 That's the point.19 MR. PLOCKER: I just want to make clear,20 when you say, the two engineers, who are you referring21 to? Are you referring to Princeton Hydro and Mr. Seel22 or Mr. Anderson?23 THE WITNESS: Yeah.24 MR. PLOCKER: Thank you.25

15 of 55 sheets Page 57 to 60 of 144 01/14/2026 10:36:25 AM 57 MR. AFRAN: I assumed that's what he meant.1 Now --2 Q. No. No, I'm sorry. I meant the two engineers, I3 A. meant Princeton Hydro and Langan. I'm sorry.4 MR. PLOCKER: Right. That was my question.5 That's what I said. Thank you.6 Now, what type of storms were you concerned about7 Q. when we talk about this type of seepage parallel to the8 slope?9 Recently there was a storm in Plainfield where10 A. there was nine inches of rain in a few hours, which is a11 tremendous amount of rain.12 When did that happen?13 Q. I am not sure. It was about six weeks or two14 A. months ago. I am not exactly sure when.15 Recently. So obviously that's a big storm and16 Q. occasionally we do get storms with a lot of rain in17 short periods of time like that.18 Is there anything else that you defined as19 seepage in this context as referring to?20 Sorry.21 A. Is there anything else that you consider as22 Q. defining seepage parallel to the slope in this sentence,23 other than say the nine inch rain?24 It would be -- well, as we pointed out25 A. 58 infiltration seepage from the infiltration system in a1 heavy rainfall situation.2 Now, other than what you said, are you able to3 Q. define a heavy rainfall situation?4 It would, I would say at a minimum a 100-year5 A. storm and and/or greater. The recent event was greater6 than a 100-year storm.7 Well, 100-year storms occur with some degree of8 Q. frequency. Frequently, every few months, right?9 No.10 A. Well, they're not uncommon, are they?11 Q. There, there is a, the whole definition is a12 A. probability of occurrence. It means it has a one13 percent chance that it will occur.14 Now, why were you worried about that degree of15 Q. seepage?16 Sorry.17 A. Why is that degree of seepage a matter of18 Q. concern?19 It's a standard precautionary evaluation that's20 A. made for steep slope stability.21 You say that, "Would be an extreme event which22 Q. may justify a lower Factor of Safety upon review of23 relevant standards." Let me ask you about the24 substance --25 59 MR. AFRAN: Bear in mind Mr. Chairman, my1 engineers not seen it and I've not yet been able to2 consult with my engineer. I do want to get some3 background from Mr. Kleinberg on this point.4 When you say, extreme event, you mean a storm in5 Q. the order of a 100-year storm?6 Right. And it would also involve

my engineer. I do want to get some3 background from Mr. Kleinberg on this point.4 When you say, extreme event, you mean a storm in5 Q. the order of a 100-year storm?6 Right. And it would also involve previous7 A. rainfall, what they call a antecedent moisture and it8 would involve the presence of an actual groundwater9 level which was not apparent on this site.10 At that time?11 Q. In the variable subsurface data there was no12 A. precise determination of where the groundwater -- we13 described the groundwater situation in our report.14 Right. Is that referring to the evidence or lack15 Q. therefore of mottling?16 That's associated with that.17 A. And there was a discussion whether they used the18 Q. right standard in terms of the type of color chart the19 DEP used with respect to identifying mottling, correct?20 I think Langan indicated they did not see21 A. mottling.22 And he used a different method that you23 Q. acknowledged was not as rigorous as what Princeton Hydro24 used, is that correct?25 60 Well, in a sample description what they said is1 A. they didn't see any mottling.2 Based upon the color and coding that they3 Q. applied, isn't that correct?4 No, they said they didn't -- I don't know. They5 A. said they did not see mottling.6 And you don't know really what methodology they7 Q. used to reach that determination?8 No, I don't.9 A. So it is an issue if there's evidence of mottling10 Q. because that would show prior waterways, correct?11 It's -- that's what the conventional wisdom is.12 A. Now, what do you mean by "Upon review of relevant13 Q. standards." You don't say much in there about what14 you're referring to?15 Well, the 2908 or the one we're referencing 1902,16 A. Core of Engineers Manual.17 Why don't you cite the standards in there?18 Q. I just, this was an e-mail, you know, I am not,19 A. you know, pinning everything down. It's an e-mail.20 And you felt the lower factor of 1.5 was21 Q. appropriate because the seepage problem would likely22 only occur in extreme events?23 I don't know if it would even occur on this site.24 A. Well, then why talk about it?25 Q.