Durham Looks to Capitulate to
California Environmental Lawsuit,
Laidlaw Continues Fight

Durham School Services may replace its 1,083 bus fleet in California with 2007 model year and newer buses or install diesel emission control devices within the next seven years, according to a tentative agreement between the company and three environmental groups that brought suit against it. Meanwhile, Laidlaw Education Services, also named in the suit, is “fighting tooth and nail,” according to one of the prosecuting attorneys.

Last year, the Environmental Law Foundation and Our Children’s Earth and Communities for a Better Environment sued Durham and Laidlaw on behalf of the public, citing Proposition 65, a 1986 California statute that requires consumers be warned if they are exposed to substances that cause cancer or birth defects. The California Environmental Protection Agency added diesel exhaust was added to a list of these substances in 1990.

In addition to an agreement to phase in replaced, retrofitted or repowered buses, a proposed agreement would have Durham install warning signs in all buses made before 2007 or those without diesel emissions controls. The 10-inch square signs would read, “WARNING: This bus contains diesel engine exhaust known by the state of California to cause cancer.” Durham would also ask that all districts or schools they serve to distribute similar warnings to parents in their native language.

Durham spokeswoman Tiffini Bloniarz said the company had already converted much of its fleet and was “far ahead of any milestones” set forth in the agreement.

A tiered system of penalties provides an incentive for Durham to replace or retrofit buses more quickly. Under the agreement, after Dec. 31, 2007, Durham will pay a $10,000 fine for every pre-1988 bus without diesel emissions controls. Additional fines range from $6,000 for buses manufactured between 1989 and 1991 to $1,000 for pre-2007 models.

"(Durham) is really stepping up to the plate,” said Shana Lazerow, an attorney for Communities for a Better Environment.

According to attorneys from the environmental organizations, Laidlaw has not expressed interest in a similar agreement. While Laidlaw representatives could not comment on the case as of this writing, a memo from company lawyers suggested the company will resist putting signs on the bus. The signs are “seriously misleading,” the memo read.

"The only purpose of the warning — and the only conceivable consequence of giving it — is to frighten some school children into rejecting buses and instead using other modes of transportation ... Yet it is beyond dispute that school bus are by far the safest modes of transportation to and from school,” it went on to say.

The memo indicates Laidlaw will fight the suit on the grounds that the signs violate its First Amendment protection from speaking against its will. Laidlaw also disputes the environmental group's claims of the extent to which children are exposed to diesel exhaust .

A San Francisco Superior Court judge is scheduled to hear Laidlaw’s case in January 2008 at the earliest. Meanwhile, Lazerow said Durham could have signs in any remaining buses within the next 75 days, pending approval from the judge and the state attorney general.