The state of Washington will not ask the U.S. Supreme Court to hear arguments on the Hanford waste initiative, ending any chance that it will become law.

Tuesday was the deadline for the state to appeal a May decision of the U.S. 9th Circuit Court of Appeals that found the initiative unconstitutional.

The initiative was passed by voters in every county except Benton and Franklin in 2004, but had not been enacted because of legal challenges led by the federal government.

The initiative was intended to stop more waste from being sent to the Hanford nuclear reservation until waste already there is cleaned up, but critics said it would have unintended consequences.

Both the late Judge Alan McDonald in U.S. Eastern Washington District Court and the 9th Circuit agreed that the initiative violated the Constitution by attempting to override federal authority to regulate radioactive waste.

Although the state disagreed, the heart of its arguments have been how the state law operates. The state did not believe it could interest the Supreme Court in taking a case to consider that, said Andrew Fitz, an assistant attorney general for the state.

The issue also came before the Washington State Supreme Court in 2005 after McDonald said it was appropriate for a state court to interpret a state law before its constitutionality was considered in federal court.

Among the state court's decision was that the initiative would expand the definition of which radioactive materials the state has authority to regulate.

"Three courts have shown the state does not have authority over the federal government in this arena," said Gary Petersen, Tri-City Development Council vice president for Hanford programs.

TRIDEC and other critics of the initiative feared it would stop not only radioactive waste but also radioactive materials used in research and medical products from entering the state. In addition, it could upset a DOE plan for some waste to be sent to Hanford, and much of Hanford's worst waste to be sent to federal repositories in other states for disposal, they said.

"Although today's announcement was ultimately the state's decision, the department is pleased the state has recognized the federal government's constitutional authority to regulate radioactive waste," said DOE spokeswoman Joann Wardrip.

Sponsors of the initiative, which included Heart of America Northwest, agree that an appeal would hang on the interpretation of state law and that's not a case the U.S. Supreme Court is likely to take, said Gerald Pollet, executive director of Heart of America Northwest.

The state's resources are better used to enforce existing cleanup standards, including the authority to require cleanup rather than allowing DOE to send more waste to Hanford, Pollet said. The nuclear reservation is heavily contaminated from the past production of plutonium for the nation's nuclear weapons program.

In addition, Congress needs to clarify state authority, Pollet said.

Congress allows the state authority over hazardous chemical waste but retains federal authority over radioactive waste. At Hanford, much of the waste is a mix of both, but the 9th Circuit ruling found the initiative appeared to be aimed at regulating the radioactive portion of the waste.

The state attorney general's office continues to be "committed to putting forth our best legal efforts to support the state's role in Hanford cleanup," Fitz said.