Section 30.3 of Title 10 of the Code of Federal Regulations Provides That No Person Shall Receive, Acquire, Own, Possess, or Use Byproduct Material Except as Authorized in a Specific or General License, Section 30.71 Schedule B Lists the Exempt Quantity for Every Licensed Isotope and Provides That Any Byproduct Material Not Listed Above, Other Than Alpha Emitting Byproduct Material, Is Exempt Only Up to One-Tenth of One Microcurie, Potassium-40 Is Not Listed Above, One-Tenth of One Microcurie Is 3,700 Becquerels, a Single Banana Contains Approximately 15 Becquerels of Potassium-40, Two Hundred and Forty-Seven Bananas Therefore Exceed the Exempt Quantity, a Standard 40-Pound Box of Bananas Contains Approximately 2,360 Becquerels, Two Boxes Exceed the Exempt Quantity, a Pallet Holds Roughly Thirty Exempt Quantities, an 11-Ounce Canister of Potassium-Chloride Salt Substitute Contains Approximately 4,700 Becquerels, More Than One Exempt Quantity Per Canister, the 70-Kilogram Human Body Produces Approximately 4,400 Potassium-40 Decays Per Second, More Than One Exempt Quantity Per Shopper, Paragraph (c) of Section 30.18 Withholds the Exempt-Quantity Authorization From Commercial Distribution, the Grocery Store Is Engaged in Commercial Distribution, and No Grocery Store in America Holds a License, Employs a Radiation Safety Officer, or Has Ever Filed a Single Form With the Commission

I. The License Requirement

The Nuclear Regulatory Commission regulates the possession of radioactive material through Part 30 of Title 10 of the Code of Federal Regulations. The scheme is comprehensive. Section 30.3, titled "Activities requiring license," states the rule without ambiguity: "no person shall manufacture, produce, transfer, receive, acquire, own, possess, or use byproduct material except as authorized in a specific or general license issued in accordance with the regulations in this chapter."¹ Possession without a license is not a technicality. It is the violation from which all other materials violations descend. The Commission has issued notices of violation for precisely this conduct, ordering violators to place their material in secure storage until a license is obtained and to file written statements describing the controls exercised over it in the meantime.²

Consider the verbs. Manufacture, produce, transfer, receive, acquire, own, possess, use. Eight verbs, and the produce department performs seven of them before lunch. The grocery store receives bananas at the loading dock. It acquires them by purchase order. It owns them as inventory. It possesses them on the shelf and in the back room. It transfers them at the register. It uses them in displays. The regulation prohibits each of these acts without a license. The store performs each of them without one.

The licensing requirement is not a formality. It is the instrument by which the Commission counts radioactive material in the United States, knows where it is, and knows who is responsible for it. Every license is a data point. Every exempt quantity is a boundary. The system works because possession is universally accounted for. Everyone who possesses, licenses or exempts. That is the theory.

The theory has an exception. It is yellow, curved, and stocked by the pallet.

II. The Schedule

The regulations anticipate that some quantities are too small to license. Section 30.71, Schedule B, lists the exempt quantity for every isotope the Commission licenses: antimony-122 at one hundred microcuries, cobalt-60 at one microcurie, polonium-210 at one-tenth of one microcurie, and on through the table.³ A person may receive, possess, use, transfer, own, or acquire byproduct material in individual quantities not exceeding the listed figure without a license, under Section 30.18.⁴ The schedule is the Commission's own answer to the question of how much is too much to go unlicensed.

The schedule lists potassium-42. It lists potassium-43. It does not list potassium-40.

The schedule's final line supplies the answer for everything else: "Any byproduct material not listed above other than alpha emitting byproduct material," exempt quantity one-tenth of one microcurie.⁵ Potassium-40 decays by beta emission to calcium-40, with a smaller electron-capture branch to argon-40. It is not an alpha emitter. The alpha exclusion does not apply. The catch-all does. One-tenth of one microcurie is 3,700 becquerels.

The Commission has therefore stated, in its own table, the maximum quantity of an unlisted beta emitter that may be possessed without a license. The number is 3,700 becquerels. The produce department will now be measured against it.

III. The Banana

The banana contains naturally occurring radioactive material in the form of potassium-40, one of several naturally occurring isotopes of potassium. Potassium-40 constitutes approximately 0.0117 percent of natural potassium, and natural potassium carries a specific activity of approximately 31 becquerels per gram.⁶ A typical 150-gram banana contains approximately 15 becquerels of potassium-40.⁷ Measured by mass, the radiological profile of bananas reaches approximately 130 becquerels per kilogram.⁸

The health physics community has given this quantity a name. The banana equivalent dose, defined as the dose from eating one average banana, is approximately 0.1 microsieverts.⁹ The concept originated on the RadSafe nuclear safety mailing list in 1995, where a physicist at Lawrence Livermore National Laboratory proposed it as a means of explaining infinitesimal doses to the public.¹⁰ The Commission's licensees measure their world in millirem. The banana has its own unit, and the unit is the banana.

The arithmetic is straightforward. The exempt quantity is 3,700 becquerels. The banana is 15 becquerels. Two hundred and forty-seven bananas exceed the exempt quantity. The banana is the most popular fresh fruit in the United States; the Department of Agriculture's Economic Research Service puts loss-adjusted availability at 13.2 pounds per person per year, ahead of every other fresh fruit.¹¹ The country does not eat two hundred and forty-seven bananas at a time. The country stores them two hundred and forty-seven at a time, by the box, in every grocery store in America.

IV. The Inventory

Bananas move through the American food system in standardized 40-pound boxes; produce industry references list 38- to 40-pound boxes as the standard shipping unit, and institutional purchasers specify 40-pound boxes by name.¹² Forty pounds is 18.14 kilograms. At 130 becquerels per kilogram, a single box of bananas contains approximately 2,360 becquerels of potassium-40. That is sixty-four percent of an exempt quantity, in one box.

Two boxes exceed the exempt quantity. The produce back room does not hold two boxes. It holds pallets, forty-eight boxes to the pallet, each pallet carrying approximately 113,000 becquerels, roughly thirty exempt quantities. The weekly delivery arrives by the pallet, in interstate commerce, from growing regions outside the continental United States, because bananas do not grow commercially in the continental United States. The store receives the shipment. It acquires it. It owns it. It possesses it. Section 30.3 lists these verbs in this order.

On the sales floor, the arithmetic continues. A twenty-box produce case holds approximately 47,200 becquerels, nearly thirteen exempt quantities, arranged in neat rows under fluorescent light. The case is restocked daily. The inventory turns over. The becquerels do not. Potassium-40 has a half-life of 1.25 billion years; the turnover of the produce department is measured in days, the turnover of the isotope in eons. Every banana that leaves through the register is replaced by another, and the replacement is equally radioactive, because the radioactivity is not a defect of the banana. It is a property of potassium.

V. The Salt Aisle

The produce department is not the only wing of the facility. In the spice aisle sits the salt substitute: an 11-ounce canister of potassium chloride, sold under familiar brand names to sodium-restricted shoppers. The leading product lists potassium chloride as its first ingredient and carries 640 milligrams of potassium per one-gram serving, with approximately 239 servings per canister.¹³ Two hundred thirty-nine servings at 640 milligrams is approximately 153 grams of potassium. At 31 becquerels per gram, a single canister contains approximately 4,700 becquerels of potassium-40.

That is more than one exempt quantity per canister. The shelf holds dozens of canisters. The shelf is restocked. The arithmetic of the produce department, which required two hundred and forty-seven bananas to reach the threshold, is completed here by a single blue canister smaller than a coffee mug. The store possesses exempt-quantity-exceeding units of an unlisted beta emitter in two departments, and it has filed nothing in either.

VI. The Shoppers

The inventory is not the only source term in the building. The human body maintains approximately 140 grams of potassium, and the potassium-40 within it produces approximately 4,400 decay events per second in a 70-kilogram man.¹⁴ Four thousand four hundred becquerels. That is more than one exempt quantity per shopper.

On a Saturday afternoon, the store contains several hundred persons, each carrying more than 3,700 becquerels of an unlisted beta emitter, each having received it without a license, each possessing it without documentation. The Commission's schedule measures the isotope, not the container. The container, in this case, is pushing a cart. The store has assembled, under one roof, the largest concentration of unlicensed possessors of an unlisted beta emitter in the county, and it charges them for parking validation.

This section will not be popular with the shoppers. The measurements are the measurements.

VII. The Commercial Distribution Problem

The exemption in Section 30.18 is not unconditional. Paragraph (c) states the limit plainly: "This section does not authorize for purposes of commercial distribution the production, transfer, or import of byproduct material, or the incorporation of byproduct material into products, or the transfer of byproduct material to persons exempt pursuant to this section or equivalent regulations."¹⁵ The Commission's own guidance explains that a facility possessing exempt quantities needs no license, provided it does not plan possession for the purposes outlined in paragraphs (c) and (d), which include commercial distribution and incorporation into products.¹⁶

The grocery store is engaged in commercial distribution. That is the entirety of its business model. It receives bananas in interstate commerce and transfers them, for money, to persons exempt pursuant to no regulation at all. The produce department is a commercial distribution operation for an unlisted beta emitter, operating at roughly thirty exempt quantities per pallet, and paragraph (c) withholds the exempt-quantity authorization from precisely this activity.

Consider the labeling standard the regulations impose on those who do distribute exempt quantities lawfully. Section 32.19 requires that the immediate container of each quantity or separately packaged fractional quantity bear a durable, legible label identifying the radioisotope and the quantity of radioactivity, and bearing the statement "Radioactive Material."¹⁷ Paragraph (d) goes further: the label must also bear the words "Radioactive Material - Not for Human Use - Introduction Into Foods, Beverages, Cosmetics, Drugs, or Medicinals, or Into Products Manufactured for Commercial Distribution is Prohibited." The store's exempt quantities have been introduced into food. The food is the store. The immediate container of each banana bears a durable, legible label. It identifies the brand. It states the country of origin. It does not identify the radioisotope. It does not state the quantity of radioactivity. It does not bear the statement "Radioactive Material." The label is compliant with the produce industry's requirements. The produce industry's requirements are not the Commission's.

VIII. The Program

A licensed facility that possessed thirty exempt quantities of an unlisted beta emitter per pallet would be surrounded by institutional machinery. It would employ a radiation safety officer. It would issue dosimetry to the workers who handle the material. It would post the trefoil at the entrance to the storage area. It would maintain a radiation protection program with written procedures, training records, and an inventory. The produce clerk, who unloads forty-eight boxes per pallet and stacks them by hand, wears no dosimeter. The banana case carries no trefoil. The back room has no posted procedures. The store's written procedures concern cold chain management, and they are enforced.

None of this machinery exists in the grocery store, because the grocery store has never considered itself a licensee. It has never filed an application. It has never paid a licensing fee. It has never been inspected. The Commission's materials licensees submit to routine inspection of their inventory, their postings, and their records. The grocery store's inventory is inspected by the health department, which checks the temperature of the milk.

The absence of the program is not an oversight. It is a structural fact about the building. The building was designed as a retail establishment. It functions as a retail establishment. It possesses, per the measurements in Sections III through VI, the radiological inventory of a small industrial radiography shop, and it is regulated as a place that sells milk.

IX. The Portal Monitors

The federal government has already encountered this inventory, and it has already been alarmed by it. Literally. A Government Accountability Office report on cargo screening notes that the radiation portal monitors deployed at ports of entry "can be set off even by shipments of bananas, kitty litter, or granite tile," triggering secondary inspections of cargo that contains no threat.¹⁸ The bananas arrive by ship. The ship docks. The portal monitor alarms. The inspectors investigate. The bananas are bananas.

The scale of the false-alarm problem was large enough to merit an engineering program. The Pacific Northwest National Laboratory recalibrated more than 1,300 radiation portal monitors used by Customs and Border Protection, reducing nuisance alarms by more than 230,000 per year and projecting savings of 55 million dollars over ten years.¹⁹ The federal government spent a national laboratory's effort and tens of millions of dollars teaching its detectors to ignore the banana. It did not ask the banana to obtain a license. It taught the machines to look the other way.

At one detector installation, boxcars full of bananas repeatedly tripped the alarm, and the operators built a concrete block wall between the tracks and the detector to shield it from the fruit.²⁰ The federal government has constructed concrete shielding against the banana. The banana remains unlicensed. The wall is the only engineered safety feature in the entire regulatory history of the produce department, and it was built to protect the detector from the inventory, not the inventory from the detector.

X. The Nut Aisle

The banana is not even the most radioactive item in the store. That distinction belongs to the Brazil nut, which the literature identifies as the most radioactive food, with radium content reaching up to 44 becquerels per kilogram, accumulated by the tree's unusually efficient uptake of radium from the soil.²¹ The nut aisle is the high-activity wing of the facility. The mixed-nuts canister is a blend. The store sells it by the pound.

The point is not that any of these foods is dangerous. The point is that the schedule measures becquerels, and the becquerels are present, and the quantities exceed the schedule's own threshold for the unlisted, and the possession is unlicensed, and the distribution is commercial, and the labeling omits the isotope, and no radiation safety officer has ever set foot in the building in a professional capacity. Every element of the violation is documented. The only missing element is the enforcement.

XI. The Defense

The defense will be raised, and it must be stated fairly. First, the Commission's authority over naturally occurring radioactive material is limited. The Commission's final rule on the expanded definition of byproduct material states that its authority "is not intended to extend to all naturally occurring radioactive material, specifically not to naturally occurring radioactive material that is found in nature in its original form and location, or that which is moved or concentrated inadvertently by some manmade process."²² A regulated discrete source must have been purposefully concentrated for commercial, medical, or research use. The banana was grown, not concentrated. The potassium in the banana was placed there by a plant, for the plant's purposes, which do not include commerce, medicine, or research.

Second, the dose is trivial and non-cumulative. The body maintains its potassium inventory at a constant level through homeostasis; the potassium-40 ingested with a banana replaces potassium-40 excreted the same day, and the banana equivalent dose is an educational exercise rather than a regulatory measurement.²³ No member of the public has ever been harmed by the produce department's radiological inventory. The Commission knows this. The Commission has never asserted jurisdiction over produce, and no serious person expects it to begin.

Third, the Commission has never licensed a grocery store, and the absence of licenses is itself evidence of the Commission's understanding of its own jurisdiction. Sixty thousand grocery stores operate in the United States. Zero hold materials licenses. The industry's compliance record, measured by enforcement actions, is perfect.

The defense confuses the banana with the isotope. The schedule does not list bananas. It lists isotopes. Potassium-40 is an isotope. It is not listed. The schedule's final line answers for everything unlisted: one-tenth of one microcurie, other than alpha emitters. Potassium-40 is not an alpha emitter. The answer is 3,700 becquerels. The banana contains 15. Two hundred and forty-seven bananas exceed it, and the pallet holds thirty times the threshold. Paragraph (c) withholds the exemption from commercial distribution, and the produce department is commercial distribution with a loyalty card program. The immediate container bears a label that omits the isotope. The workers wear no dosimetry. The defense asks the Commission to consider the banana's intentions. The schedule does not ask about intentions. It asks about becquerels.

XII. Conclusion

The facts are these. Section 30.3 requires a license to receive, acquire, own, possess, transfer, or use byproduct material. Section 30.71 Schedule B sets the exempt quantity for unlisted beta emitters at one-tenth of one microcurie, or 3,700 becquerels. A banana contains approximately 15 becquerels of potassium-40. Two hundred and forty-seven bananas exceed the exempt quantity. The standard 40-pound box contains approximately 2,360 becquerels. Two boxes exceed it. The pallet holds roughly thirty exempt quantities. The salt substitute canister holds more than one. The shopper carries more than one. Paragraph (c) of Section 30.18 withholds the exempt-quantity authorization from commercial distribution, and the grocery store is engaged in commercial distribution. The immediate container's label omits the isotope. No radiation safety officer is employed. No dosimetry is issued. No trefoil is posted. No license has ever been sought, and no license has ever been granted.

The grocery store receives, acquires, owns, possesses, transfers, and uses thousands of exempt quantities of an unlisted beta emitter, distributes them commercially in interstate commerce, labels them without the isotope, and operates without a license, a radiation safety officer, or a single filing with the Commission. The federal government has built a concrete wall against its inventory. It has taught its portal monitors to ignore it. It has never asked it for paperwork.

The largest unlicensed nuclear facility in America has a salad bar. Ergo.