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Deadly Pitfalls

Every Tuesday morning, the diminutive great-grandmother with the white hair and glasses would leave her tidy house in the country, get behind the wheel of her 1992 blue Ford Taurus and drive the short distance into town to attend Bible class at Immanuel Lutheran Church.

She would pull up to the intersection where County Road 217 meets U.S. Highway 77, about three miles south of where Main Street crosses the main drag in the east-central Texas burg of Giddings.

On a particular Tuesday last spring, she waited at the stop sign while three cars flew past her on the four-lane highway. Then she moved her foot from the brake to the gas pedal and began turning the steering wheel to the left.

The collision occurred seconds after that.
A few minutes earlier and a few miles away, six women had piled into a blue GMC Safari van to head to work, just as they did every weekday morning. The women, roommates at a group home for mentally retarded adults, were learning life and job skills so that they could finally move out on their own.

The great-grandmother's car, which had moved into the intersection, collided with the right-side front of the van, sending the six women and their driver into a spin across two oncoming lanes and beyond the shoulder of the road. The van traveled through a narrow field of weeds, wildflowers, shrubs and small trees. And into an eight-foot-deep fishing pond.

The van flipped before it entered the pond, and came to rest with only its rear wheels spinning above the murky water. Below the water, the van's horn blared. Despite heroic rescue efforts by folks working nearby, five of the seven women trapped in the van would die in the accident. The cause of death was drowning.

Four months later, Lee County District Attorney Ted Weems would file papers charging the great-grandmother, 84-year-old Elsie Nitsche, with criminally negligent homicide, a felony that carries a possible jail sentence. Now her attorney says she struggles with the thought that society thinks she intended for those women to die.

Violent though the impact was, the accident should have resulted in bumps, bruises and perhaps broken bones. Not burials.

If the state Legislature had done what it intended to do and if a state regulatory agency had done what it is supposed to do, the fishing pond would have been filled or had a guardrail that would have prevented the van from plunging into the water.

And the five women would not have drowned.

In 1991, the Legislature passed a law requiring that barriers be erected between roads and certain types of open pits that are within 200 feet of the road's edge. The law was in response to a 1989 accident in the Rio Grande Valley town of Alton that killed 21 Mission junior high and high school students. The teenagers drowned after their school bus was hit and went off the road, landing in an abandoned quarry 20 feet from the roadside. At the bottom of the unfenced 40-foot-deep chasm was 12 feet of water.

"We passed the law so something like that accident would never happen again," said former state Representative Eddie De La Garza of Edinburg, who sponsored the legislation.

But the law, the Texas Aggregate Quarry and Pit Safety Act, missed the mark. Doomed from the outset, the narrowly focused law was the work of a quarry operators' association interested in repairing the industry's reputation, which was sullied after the Alton crash.

As a result, the law is more effective at shielding the industry from a recurrence than at addressing the bigger problem of open pits along roadsides. Most of those hazards, including the pond in Giddings, are not remnants of abandoned quarries but rather the legacy of highway construction in Texas.

The law, however, is not under the auspices of the state's highway agency. Instead, it falls to the Railroad Commission, which regulates surface mining -- a tenuous tie, for certain. And the agency, which is run by three elected commissioners, seems to expend more energy trying to get rid of the pit safety program than trying to make it work. It has never aggressively challenged the Legislature's indefensible budget for the program, which at $51,891 is about half of the $92,217 appropriated yearly salary of a single railroad commissioner.

"The Legislature does not give this program a high priority," Railroad Commissioner Charles Matthews said. "That's pretty obvious, because we're not going to be able to do very much with the amount of money they give us to run it."

With only one inspector to track down pits that violate the law, the commission figures at least 40 years will pass before the agency can get around to requiring barriers for 1,800 dangerous pits it conservatively estimates lie along Texas roadsides. The commission currently knows the location of hundreds of dangerous pits that are spread across all parts of the state in both rural and urban counties.  

But it had no idea that the pit in Giddings existed until it got word that five women had died in it.

"This accident falls at the Railroad Commission's doorstep," De La Garza said. "The commissioners should quit whining and admit that they have not done what they are supposed to do."

Matthews believes the commission has done exactly what the Legislature intended it to do with the law -- which, he says, purposely is not much.

"The way it is written, it is a very difficult law to enforce," he said. De La Garza's contention that the law should have prevented another tragic accident is based on emotion rather than an objective reading of the law, Matthews added.

As fingers are pointed, friends and families of the five victims grieve. The two survivors endure horrific memories. And Elsie Nitsche, her very private and very honorable life now intruded upon and smeared, faces a homicide charge.

"The situation is very apparent to everyone," said Emily Nitsche, the woman's sister-in-law. "There was no barrier around that pond. And were it not for that pond, the accident would have had a very different result."

Likewise, if the open pit in Alton had been barricaded or filled, the 21 students from Mission might have survived the 1989 school bus accident. That fact is what spurred the Legislature to pass the 1991 law that for the first time regulated open roadside quarries and pits.

The Alton pit was an abandoned quarry. Members of the Texas Aggregates & Concrete Association, which represents quarry operators, decided it was in their best interest to work with legislators to have regulations passed.

"Our industry definitely took a black eye when that tragedy occurred," said Mike Stewart, the association's vice president for governmental affairs. "People pointed at quarry operators as a whole, so we believed something needed to be done to make sure that kind of tragedy would never happen again and to insulate our industry from taking a hit like that in the future."

Yet the abandoned quarry in Alton was a bit of an anomaly. Few quarries operated adjacent to roadways, although as Texas grew, some roads were built alongside existing or abandoned operations.

The vast majority of the roadside pits were dug by road crews working for the state to build new highways. The contractors would dig a pit on private land, just tens of yards from the highway they were building, to use the dirt for road base. Often, they would strike a deal with the landowner, offering to turn the pit into a fishing pond or a watering hole for livestock in exchange for the dirt.

Yet the Associated General Contractors, which represents highway contractors, and the Texas Department of Transportation, which lets the contracts, were not involved in the drafting of the law.

Because the bill was written by an industry that wasn't the main contributor to the problem, it took some illogical twists. For example, quarry operators successfully pushed to have the regulatory authority fall within the Railroad Commission. Because this business involves mining rock and pebble, it made sense for the state agency that reclaims abandoned coal and uranium mines to regulate abandoned quarries and pits. But railroad commissioners today say the program is one of highway safety, and more appropriately belongs at the Department of Transportation. The quarry operators' association did not like the only alternative the Legislature was considering at the time -- giving regulatory authority to Texas counties.

"The last thing we wanted was 254 regulators," Stewart said. The law requires property owners -- including governmental entities -- to slope, backfill or build a safety barrier (such as a guardrail) around any active, inactive or abandoned quarry or pit on their land if the hole is at least five feet deep and within 200 feet of the roadside. The bill passed the House 1381 and the Senate 310. The near unanimity may have had more to do with what was excluded from the bill than with what was included.

The law covers only man-made pits that were dug for the purpose of obtaining the aggregate or dirt that was extracted. It does not include other potential roadside water hazards, such as ponds dug by farmers or ranchers to irrigate their crops or water their livestock, or waterscapes (such as fountains or ponds) constructed by developers of subdivisions. Nor does it cover naturally formed ponds.

Matthews can only assume that the exclusions are by design. "It's not an expansive law," he said, figuring the Legislature didn't want to take on farmers, ranchers or home builders. "The law passed in 1991 and the Legislature has met three times since then. If it was the will of legislators to make the law more broad and have us do more to address this safety problem, then I assume they would have amended it to do so."  

In fact, the exclusions make the law difficult to enforce. Since the law does not cover all roadside ponds, the railroad commission must inspect every ditch or pond it comes across to determine whether it was created for the purpose of obtaining aggregate or dirt. Although the commission's lone inspector has developed an eye for which ponds fall under the law, he still must obtain the legal documents that back up his theory, said Patrick Martinets, the inspector's supervisor at the commission. Tracking the origin of a pit can require hours of painstaking research. To prove the origin, the inspector sometimes must rely on property owners to 'fess up, which they often won't do.

And who can blame them? The law requires property owners to pay the state $500 for a so-called safety certificate after it is determined that the pit on their land falls under the law. Property owners also must incur the costs of erecting a barrier or filling the hole. The $500 fee ($350 if the pit owner is a governmental entity) was originally intended to pay for the program. But when the fees collected fell short of the money needed to run the program, the Legislature shifted the receipts (about $20,000 a year, currently) into the state's general revenue fund and began paying for the program out of general revenue (about $50,000 a year, currently).

The fee discourages property owners from voluntarily reporting pits to the commission -- assuming they know about the law, which few do -- and from cooperating once they are found out. In addition, the law provides no penalty to any property owner who fails to report a pit to the commission. Only when the commission makes a final determination that a pit falls under the law is a property owner required to build a barrier or face a maximum fine of $10,000.

In seven years, the commission has handed down one fine.
The time and effort it takes to investigate just one pit means few cases are resolved, and as a result, more dangerous open pits along Texas roads stay as they are. Martinets, assistant director for inspection and enforcement in the commission's surface mining and reclamation division, said a single investigation can require the inspector to visit a pit more than ten times. Stubborn cases can easily take longer than a year to close.

"The logistics of enforcing this law are just a nightmare," he said.
Not only are lawmakers appropriating a pittance to enforce the law, they are recognizing that strong enforcement can be unpopular with the folks back home. Some legislators have pestered the commission when landowners in their districts complain about the agency trying to require them to comply with the act. Yet, Matthews notes, no legislator has ever come to the commission to express concern about the program being underfunded.

Is Matthews saying that maybe legislators are sabotaging the law to prevent it from working?

"I'm being very careful not to say that," he said. "I am saying that there are a lot of different pressures out there on this issue."

Days after the law went into effect in 1991, the Railroad Commission began analyzing U.S. Geological Survey maps in an effort to identify open quarries and pits that probably violated the law. A few months later, the commission sent 3,100 letters to elected officials and industry associations across the state informing them about the new law. The analysis of the maps, along with responses to the mail-out, resulted in the commission estimating that 2,400 dangerous pits existed along roads.

In seven years, the commission's actions have resulted in barriers being built or holes being filled at about 800 pits. An additional 200 pits discovered recently bumped up the commission's estimate; it now believes at least 1,800 cases are still unresolved. If the cases are closed at a rate of about 45 per year, the commission figures the current backlog will take 40 years to clear.

Melvin Hodgkiss, director of the commission's surface mining and reclamation division, figured in September 1991 that the program needed four field inspectors, one engineer, an administrator, a clerk and a secretary to operate effectively.

The program plods along today with one inspector, making a $32,000 annual salary, who covers Texas's 262,000 square miles by car. There isn't enough money in the budget for him to fly.  

The Legislature appropriated $51,891 a year for the commission to run the quarry and pit safety program from September 1997 through August 1999. Railroad commissioners, who like legislators are elected by the people, have had opportunities to pressure the Legislature for more money. Yet they have not.

During the 1997 legislative session, Matthews said that, instead, he spent much of his time trying to get the program transferred elsewhere. A deal to move it to Texas counties fell through near the end of the session, he said, and by then it was too late to make a pitch to legislative budget writers to appropriate more money.

"We thought we were going to be out of that business -- and we want to be out of that business," he said.

Matthews said he now wants the program transferred to where he believes it ought to have been put in the first place -- the Texas Department of Transportation. He figures that agency knows best where the pits are located since its contractors made most of them. But he figures wrong. The transportation agency has no inventory of the pits, said Phyllis Chandler, a department spokeswoman.

"We award the contract, and the contractor is responsible for finding the place where they obtain the fill [for the road base]," Chandler said. "We don't keep any tabs on that, because that really is not our responsibility."

One week after the Giddings tragedy, Matthews and Railroad Commissioner Carole Keeton Rylander broke the agency's public silence about the program during a regular commission meeting. Matthews opined about the logic of transferring the program, while Rylander talked about the imperative of asking the Legislature for more money.

"This certainly ought to be a top priority on our legislative agenda," Rylander said. "It's got to be adequately funded if you're serious about this program."

That was late April. But in a commission memo to the Legislative Budget Board dated August 21, commissioners are requesting $58,700 a year for the program for the 2000 2001 biennium. They are asking the Legislature to appropriate $45.4 million a year to run the entire agency, which also oversees the oil and gas and rail industries.

An aide to Rylander said the commissioner, who has been crisscrossing Texas in her campaign for state comptroller, could not find time in her schedule to be interviewed for this story. If Rylander loses the comptroller race to Democrat Paul Hobby, she would remain on the commission until her term expires in 2002.

"Instead of worrying about getting millions of dollars in campaign contributions from the oil and gas and railroad industries that they regulate, these commissioners ought to be worrying about the poor guy that drowns in one of these pits," De La Garza said.

During the commission meeting in the spring, Rylander instructed the commission's staff to install a link at the top of the agency's World Wide Web site that informs people about the law. That has been done. And she ordered the staff to send a new round of letters to state and local officials specifically asking them to help the commission identify open roadside pits that violate the law. Some 5,000 letters were sent in late June.

Those letters represent the first time the commission has formally sought assistance from Texans in identifying dangerous pits that are not their own.

The commission asked the Department of Public Safety, for example, to ask its troopers to look for roadside hazards located on private property, said DPS spokesman Tom Vinger.

"That doesn't mean they ignore them or don't pay attention to them," he said. "But their job is to police what's happening on the thousands of miles of Texas roads and bridges that we are responsible for. We're not washing our hands of responsibility, but we've got our hands full with the responsibilities we have."

So far, the 5,000 letters have resulted in the identification of 200 open pits that potentially fall under the law, Martinets said.

"I think there are many more out there that we still don't know about," he said.

Elsie Nitsche and others who regularly drove past the fishing pond in Giddings knew it was there.

"I wouldn't think it would be something that you would look at and say, 'Gosh, I've got to be careful, because someday some car may hit me and I may accidentally knock them in it,' " said Max Roesch, Nitsche's attorney. "I think that's far afield of what most people think of while they're driving."

Marvin Wenke, a 71-year-old car salesman from Houston, knew the pond was there. It was on his land.  

But Wenke says he did not know about the law until after the commission came down on him to take care of the hazard -- three days after the fatal accident. The pit, which was 14 yards from the roadside and stretched about 50 yards along the length of the highway, was dug 30 years ago by a road crew that was widening U.S. 77 and needed the clay for road base. In exchange, the contractor turned the pit into a fishing pond for Wenke's father, who owned the land at the time.

"It's never been a quarry or anything like that," said James Boanerges, Wenke's lawyer. "It's been full of water since three months after they dug it. Mr. Wenke's caught as much as a 12-pound fish out of it, and he used it to irrigate a garden."

Although Wenke was never notified by the commission until after the deaths, he has been sued for negligence by the mother of one of the victims and the two survivors in the van.

"He feels like the state has made him the scapegoat in this," Boanerges said. "He feels horrible about what happened, but he hasn't accepted the blame for it, and I hope he doesn't. He's not to blame. I don't think he feels like he could have done something differently."

Nitsche, who cracked her kneecap and sprained her wrist in the wreck, also has been sued by the grieving mother and the housemate who survived. Roesch is hoping that a DPS accident report that estimates the van was traveling ten to 18 mph over the speed limit at the time of the crash will result in the criminal charges against Nitsche being dropped or at least reduced to a routine traffic ticket for failing to yield.

Wenke spent the money to drain and fill his pit in early June. The fresh gray clay that now fills the hole glistens under the sunlight. The former pond still looks wet.

Along the roadside, in the path of where the van traveled, a crude memorial of flowers and crosses lives among the crickets in the strip of wild grass. Plastic pink roses and white daisies are attached to a bar of foam, stuck in the ground with metal pins. Beside it is a wreath of blue and white plastic flowers surrounding a picture of Jesus, faded orange by the sun. A small cross made of scrap wood is adorned with red ribbon and red plastic flowers. And beside that stands a five-foot-tall wooden cross with three red reflectors and a small, rolled-up souvenir American flag attached to it.

A couple of days after the accident, someone fastened two orange highway-worker safety vests to a tall juniper using wooden clothespins -- a warning to all who traveled there.

The five women who died lived in the Country Club Group Home, a supervised four-bedroom residence that houses up to six people at a time with mild cases of mental retardation.

Betty Schuchardt, the former house manager, remembers each of the women fondly, especially 43-year-old Dawn Deltour, who would spend weekends with Schuchardt and her husband.

Deltour had no contact with her own four children, including her twin 18-year-old girls, one of whom attended her funeral. A chain smoker whose other addiction was coffee, Deltour delighted in making the group home smell good with her spirited housekeeping.

Mary Carroll was a quiet 55-year-old who had limited use of her swollen left arm after a mastectomy failed to heal properly. She could play the piano just fine, though, with her one good hand. Alice Rosipal, 66, could speak German and often trailed people around the house, picking up after them. She would take out a trash bag long before it was full. Sherry Grudziecki, 36, was a fan of crossword puzzles. Kim Snowden, 26, had a really bad crush on Tom Cruise.

Every weekday morning, the five women and 23-year-old Kristen Lindy, the only roommate to survive the wreck, would hop in the van for a 20-mile trip to La Grange, where they would work at Texas Rural Health Services, which operated the group home.

At the eight-hour vocational workshop, they sorted paper napkins, plastic forks, spoons and knives and paper packets of salt and pepper, putting one of each in a plastic bag for use at takeout restaurants. Or, they would string color chips on metal rings for use at paint stores.

Although heartbroken, Schuchardt blames no one -- especially not Nitsche -- for what happened.

"It just happened," she said. "One of those freak things. I feel sorry for that woman. I think she has gone through enough just having to live with knowing what happened. They should just leave her alone."  

Weems, the Lee County district attorney, is aware of the sensitivity of the prosecution. Many have pointed out the ironies to him. The pit was a creation of the state, dug by a highway contractor. The state was delinquent in its duty to require that the pit be filled or barricaded. And now the state is charging a great-grandmother with homicide for deaths that occurred in that pit.

The truck driver who ran a stop sign and hit the school bus in 1989, in Alton, was acquitted of 21 counts of involuntary manslaughter in May 1993 because jurors were not convinced his brakes worked properly and, undoubtedly, because they viewed him as another of the accident's victims.

Many in Giddings view Nitsche, a churchgoer and lifelong resident, in the same way -- including Weems.

"Mrs. Nitsche has suffered terribly, along with the families and friends of the five victims," he said. "This is a terribly difficult case, because it was purely an accident."

An accident state legislators promised to prevent.

E-mail Stuart Eskenazi at eskenazi@ibm.net.


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