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2 <br />3 <br />4 <br />5 <br />6 <br />7 <br />8 <br />9 <br />10 <br />11 <br />12 <br />13 <br />14 <br />15 <br />16 <br />17 <br />18 <br />19 <br />20 <br />21 <br />1? 1) <br />23 <br />24 <br />25 <br />26 <br />27 <br />28 <br />allege the pressure and temperature of the 200 cubic feet' as required by H& S Code § 25503.5(a)z. <br />The tanks in question have a volume far less than 200 cubic feet so that, without knowing <br />whether the plaintiff is claiming that liquid Carbon Dioxide is a gas and at what temperature and <br />pressure the 200 cubic feet is measured, the defendants cannot file a verified answer. <br />COMPLAINT FAILS TO STATE A CAUSE OF ACTION <br />If the plaintiff claims over 500 pounds of Carbon dioxide or over 55 gallons of Carbon <br />Dioxide (but it must choose one or the other) the complaint will require an answer. <br />If it alleges 200 cubic feet and specifies that it considers Carbon Dioxide as a gas at a <br />specified temperature and pressure, it still will not have stated a cause of action. <br />Even if listed as a hazardous substance, Carbon Dioxide is not a hazardous substance giving <br />rise to a safety plan requirement unless it meets the threshold established by H & S Code § 63823 <br />which requires that "as present" at the defendants' business, exposure to it will cause risk to human <br />health. <br />Since Carbon Dioxide is at atmospheric pressure a ubiquitous and harmless gas (a room full <br />of people.produces large quantities by respiration), an allegation that the defendants handled 200 <br />cubic feet at room temperature and pressure must be accompanied by an allegation that as "present" <br />at the defendants' business locations (of perhaps 50,000 cubic feet) the resulting concentration, <br />0.004, (far less than in a human lung during exhalation) is a risk to human health. <br />Any allegation based on 200 cubic feet of Carbon Dioxide without further specification and <br />without alleging that that quantity as present at the defendants' place of business constitutes a risk <br />'Compressed Carbon Dioxide is a liquid. <br />'-"Any business, except as provided in subdivision (b) and (c), that handles a hazardous <br />material or a mixture containing a hazardous material that has a quantity at any one time during the <br />reporting year equal to, or greater than, a total weight of 500 pounds, or a total volume of 55 gallons, <br />or 200 cubic feet at standard temperature and pressure for compressed gas". H & S Cd. §25503.5(a). <br />"A substance, mixture, or product shall not be considered hazardous to the extent that the <br />hazardous substancerp esent is in a physical state, volume or concentration for which there is no <br />valid and substantial evidence that any adverse acute or chronic risk to human health may occur from <br />exposure." H & S Cd. § 6382. <br />Points and Authorities in Support of Special Demurrer - 3 - <br />