Sinclair asked Christensen whether EnergySolutions would drop the suit if the compact committee allowed the import of Italian waste under the condition that the amount of foreign waste coming to the Clive site in the future from foreign countries would be limited to 5 percent of the site's remaining capacity. Christensen said, in that case, the lawsuit would be dropped, but that compromise was not reached Thursday.

In its lawsuit and in front of the committee, EnergySolutions outlined several reasons why the compact lacks authority to prevent the company from receiving shipments of Class A low-level radioactive waste from foreign countries.

The company claims the compact, by design, has no statutory authority and that excluding the Italian waste "would amount to discrimination against foreign commerce and would therefor violate the Dormant Commerce Clause" of the U.S. Constitution.

EnergySolutions also believes that a 2007 agreement would be breached between the company and Utah Gov. Jon Huntsman Jr. if the compact, namely Utah's representative on the compact, ruled against the company's current state license. That license allows EnergySolutions to receive low-level radioactive waste, which the license has "never" distinguished between foreign and domestic, according to EnergySolutions.

Judd asked the committee at one point what authority Huntsman has in making an agreement on radioactive waste disposal with a private company. He also asked whether that agreement would hold up under a different governor.

"I don't know the answer to that question," Sinclair told Judd.

EnergySolutions also said any action by the compact to exclude foreign waste shipments would be "arbitrary and capricious and therefor invalid."

Committee members asked EnergySolutions officials about why no one in Europe will process or store the Italian waste or whether the company could partner with anyone overseas to handle the waste outside of the U.S. Montana committee member Roy Kemp asked if EnergySolutions has any plans to actually develop another waste site somewhere else. Christensen said his company does not have any such plans right now.

Before voting on the amendment to the resolution, the committee also talked about rules that govern how EnergySolutions classifies foreign waste. Company officials told committee members that some waste from outside the U.S. is no longer considered "foreign" after it is incinerated in Tennessee. In some cases the leftovers after incineration are declared as "Tennessee" waste, not foreign, before it is shipped to Clive for disposal.

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E-mail: sspeckman@desnews.com