
USCA1 Opinion

	




          September 27, 1995                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2095                  NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,                               Plaintiffs, Appellants,                                          v.                                  TOWN OF PLAISTOW,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET            The opinion  of  this court,  issued  on  September 20,  1995,  is        amended as follows:            On page 12, line 8 of first full paragraph,  replace "making" with        "make".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2095                  NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,                               Plaintiffs, Appellants,                                          v.                                  TOWN OF PLAISTOW,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Mark I. Zarrow with  whom Lian, Zarrow, Eynon & Shea was on briefs            ______________            __________________________        for appellants.            Melinda  S.  Gehris  with  whom  Marjorie  E.  Lanier  and Devine,            ___________________              ____________________      _______        Millimet & Branch, P.A. were on brief for appellee.        _______________________                                 ____________________                                  September 20, 1995                                 ____________________                 BOUDIN, Circuit Judge.  This appeal presents a challenge                         _____________            to  a town zoning ordinance  and cease and  desist order that            limit  night-time  access  to   and  from  a  local  trucking            terminal.   Appellants are  the terminal owner,  the terminal            operator,  various interstate  motor carriers  that regularly            use  the  terminal,  and   an  association  representing  New            Hampshire truckers.   Appellee is the  Town of Plaistow,  New            Hampshire, ("the town"),  which adopted  the restrictions  at            issue.  The terminal is located on a  site partly in Plaistow            and partly in Newton, New Hampshire.                 The trucking terminal began operation in September 1988.            It serves  as a regional  hub for various  trucking companies            serving the New England  area.  Line haulers from  around the            country drop off freight  to be delivered in New  England and            pick up  freight whose destination lies  outside New England.            Atlas  Motor Express,  Inc.  ("Atlas"), the  operator of  the            terminal, maintains a fleet of trucks and provides short haul            service within the New  England area.  The terminal  operates            24 hours a day, loading and unloading trailers.                   Most trucks that use  the Plaistow/Newton terminal reach            it from Interstate  495, a federal highway  that runs through            Massachusetts  and  near  the  New Hampshire  border.    From            Interstate 495, trucks travel  about 5 miles on Route  125 to            Kingston  Road (both  are New  Hampshire state  highways) and            then about half a mile to Garland Way, the terminal's private                                         -2-                                         -2-            access  road.   Trucks  must travel  roughly 2000  feet along            Garland  Way, the first  portion of which  passes through the            Plaistow residential zone.  The terminal's facilities are all            located  in  Newton  in   an  industrial  zone  bordering  on            Plaistow.                 Shortly  after the  terminal opened,  numerous residents            from  Plaistow who live along  Kingston Road near Garland Way            complained  about late night  truck traffic  to and  from the            terminal.   The town subsequently  served a cease  and desist            order on Atlas and  the terminal owner, alleging  a violation            of  a  Town  of  Plaistow  zoning  ordinance  that  reads  in            pertinent part:                 Any  uses that  may  be obnoxious  or injurious  by                 reason  of the  production  or emission  of  odors,                 dust, smoke, refuse matter, fumes, noise, vibration                 or  other similar conditions, or that are dangerous                 to the comfort, peace, enjoyment,  health or safety                 of  the community,  whether it  contributes  to its                 disturbance  or  annoyances are  prohibited  in all                 districts.            The  cease and  desist  order stated  that "heavy  commercial            trucking  arriving  at and  leaving  [the]  site is  emitting            odors, smoke,  fumes, noise and vibration  around the clock."            Despite  the  order, late  night  traffic  to  and  from  the            terminal continued.                     The  town  then  brought  an  action  in  New  Hampshire            Superior Court seeking an injunction against the terminal and            an order imposing  reasonable hours of operation.   The state            court entered a preliminary  injunction on February 28, 1989,                                         -3-                                         -3-            placing  a  curfew  on  night-time  access to  and  from  the            terminal.   After an evidentiary hearing, the court entered a            permanent injunction on July 7, 1989, limiting the terminal's            night-time traffic as follows:                 6:00 a.m. to 9:00 p.m.:   No restrictions.                 9:00 p.m. to 11:00 p.m.:  Two  trucks   may  arrive   or                 depart.                 11:00 p.m. to 5:00 a.m.:  No   trucks  may   arrive   or                 depart.                 5:00 a.m. to 6:00 a.m.:   Three  trucks  may  arrive  or                 depart.                          The New Hampshire Supreme Court denied the terminal's request            for appellate review.                On  March  26,  1993,  appellants filed  a  federal  suit            against  the  town,  alleging  that the  enforcement  of  the            Plaistow zoning  ordinance was  preempted by  various federal            statutes and by the Commerce Clause.   U.S. Const., Art. I,              8.    On October  25, 1993,  the  district court  granted the            town's motion to dismiss,  for failure to state a  claim, the            appellants' claim  that the  injunction was preempted  by the            Noise Control  Act of  1972, 42  U.S.C.   4901  et seq.   New                                                            _______   ___            Hampshire Motor Transport Ass'n  v. Town of Plaistow,  836 F.            _______________________________     ________________            Supp. 59 (D.N.H. 1993).                 A  three-day  bench  trial   followed  in  August  1994.            Thereafter,  the  district court  ruled  that  the injunction            limiting night-time access to  and from the trucking terminal            was not  preempted by two  other federal statutes  invoked by            the  appellants--the Surface Transportation Assistance Act of                                         -4-                                         -4-            1982,  49 U.S.C.   31101 et seq., and the Hazardous Materials                                     _______            Transportation Uniform Safety  Act of 1990, 49 U.S.C.    5101            et  seq.--and did  not  violate the  Commerce  Clause.   This            ________            appeal  followed.    We   agree  with  the  district  court's            determinations and affirm.                 1.  The town  urges that the district court  judgment be            upheld,  without reaching the merits,  on the ground that the            state court enforcement action  is res judicata as to  all of                                               ____________            the appellants.  The reach of a prior state court judgment is            determined  by  state  law.    Migra v.  Warren  City  School                                           _____     ____________________            District Board of Education,  465 U.S. 75 (1984).   Under New            ___________________________            Hampshire  law, we  think that  the prior  judgment does  not            foreclose the  present suit, at least by  appellants who were            not parties to the state court action.                 The  only defendants in the state  court action were the            terminal owner and  its operator.   Non-parties can be  bound            where they are in privity  with parties to prior  litigation,            and the privity concept is fairly elastic under New Hampshire            law, as elsewhere.   But normally something more  is required            for  privity between  the  prior and  present litigants  than            merely a common interest  in the outcome.  Daigle  v. City of                                                       ______     _______            Portsmouth, 534 A.2d 689, 694 (N.H. 1987).  See also Gonzalez            __________                                  ________ ________            v. Banco Cent.  Corp., 27  F.3d 751, 756-63  (1st Cir.  1994)               __________________            (interpreting federal law).                                           -5-                                         -5-                 Here,  there  is   no  indication  that  the   appellant            interstate carriers  even knew of, let  alone controlled, the            prior litigation.  Although the town points out that the same            law  firm represents  all of  the appellants,  the interstate            carriers are  not claimed to  have controlled or  managed the            original state court litigation from behind the scenes.   Cf.                                                                      ___            Montana  v. United States, 440  U.S. 147, 154 (1979); General            _______     _____________                             _______            Foods  v. Massachusetts Dept.  of Pub. Health,  648 F.2d 784,            _____     ___________________________________            789  (1st Cir. 1981).   It is also  plain that the interstate            carriers  who use the terminal on a regular basis have a real            and distinct interest in nullifying the town's restriction.                 Finally, we note that with the exception of the Commerce            Clause  issue,   the  federal  issues  were   apparently  not            litigated in  the state  court.   This would  not necessarily            defeat  a valid claim of res  judicata, see, e.g., Stuhlreyer                                     _____________  ___  ____  __________            v.  Armco, Inc.,  12 F.3d  75,  77 (6th  Cir.  1993), but  it                ___________            encourages  us to resolve any doubts in favor of allowing the            carriers  to sue.   Since the merits  must be reached  on the            appeals by the interstate carriers, we  need not consider the            stronger claim of foreclosure  against the owner and operator            of the terminal.                  2.   Turning to the  merits, our review  of the district            court's  preemption analyses is  plenary, Ellenwood  v. Exxon                                                      _________     _____            Shipping  Co., 984  F.2d  1270, 1273  n.4  (1st Cir.),  cert.            _____________                                           _____            denied, 113 S.  Ct. 2987 (1993), and we address  in turn each            ______                                         -6-                                         -6-            of  the statutes relied on by appellants as a separate ground            for preemption.    Among these,  the  most important  is  the            Surface Transportation  Assistance Act of  1982 ("the Surface            Act"),  as amended  by the  Tandem Truck  Safety Act  of 1984            ("the Tandem Act"), now codified at 49 U.S.C.   31111 et seq.                                                                  _______            These statutes together establish uniform, national standards            for the maximum size  and weight of trucks and  trailers used            in interstate commerce.                 As  amended, the  Surface  Act forbids  the states  from            enacting or enforcing laws  that prohibit trucks and trailers            of approved length and weight from travelling on the national            network, i.e.,  the system  of interstate highways  and other                     ____            federally-funded primary routes  designated by the  Secretary            of  Transportation.  49 U.S.C.   31111(e); 23 C.F.R.   658.5.            The Surface  Act also prohibits states  from denying approved            trucks and trailers "reasonable access" between  the national            network and "terminals."  49 U.S.C.   31114.  This provision,            which is at the heart of this case, reads as follows:                   31114.  Access to the Interstate System                 (a) Prohibition on denying access.  A State may not                 enact  or enforce  a  law denying  to a  commercial                 motor  vehicle   subject  to  this   subchapter  or                 subchapter  I  of  this  chapter  reasonable access                 between--                      (1)   the  Dwight  D.   Eisenhower  System  of                      Interstate  and  Defense  Highways  (except  a                      segment  exempted  under  section 31111(f)  or                      31113(e)  of this title)  and other qualifying                      Federal-aid Primary System highways designated                                         -7-                                         -7-                      by  the Secretary of Transportation [i.e., the                                                           ____                      national network]; and                       (2)  terminals,  facilities  for  food,  fuel,                      repairs, and  rest, and points  of loading and                      unloading for household  good carriers,  motor                      carriers  of passengers, or any truck tractor-                      semitrailer    combination   in    which   the                      semitrailer has a length of not more than 28.5                      feet and that generally  operates as part of a                      vehicle   combination  described   in  section                      31111(c) of this title.                 (b)  Exception.--This section  does  not prevent  a                 State or local government from  imposing reasonable                 restrictions,  based on safety considerations, on a                 truck tractor-semitrailer combination in  which the                 semitrailer has a length of not more than 28.5 feet                 and that  generally operates  as part of  a vehicle                 combination described  in section 31111(c)  of this                 title.                  The district court  ruled that the local  curfew did not            deny  reasonable access  to trucks wishing  to use  the Atlas            terminal.  The terminal is located between five and six miles            from Interstate  495, the nearest juncture  with the national            network.    (Route 125  in  Plaistow  is not  a  part of  the            national  network.    See  23  C.F.R.     658,  app.  A  (New                                  ___            Hampshire.))   Given this distance, and Plaistow's legitimate            interest in curbing noise,  odor and dust in  its residential            areas,  the   district  court   found  that   the  night-time            restrictions were a reasonable compromise.                  On  this  appeal,  the   truckers  first  say  that  the            "reasonable  access" provision  limits state  restrictions to            those  based on safety.   This is a  straightforward issue of            statutory construction which,  absent the "exception"  clause                                         -8-                                         -8-            quoted above, would easily  be resolved in the  town's favor.            After  all, the main  provision requires "reasonable access."            49 U.S.C.   31114(a).   "Reasonable" is a comprehensive term,            United States  v. Rodriguez-Morales,  929 F.2d 780,  785 (1st            _____________     _________________            Cir. 1991), cert.  denied, 502 U.S. 1030  (1992), and nothing                        _____________            in language or common-sense  makes reasonableness turn solely            on safety considerations.                   Context  reenforces  this view.   The  "[p]rohibition on            denying access,"  49 U.S.C.    31114, extends far  beyond the            operation of  interstate highways or  federally funded  state            roads  that are  designated  parts of  the national  network.            Local  roads and  other facilities  are also  covered by  the            provision to the extent needed to assure reasonable access to            the national network.  23 C.F.R.    658.19.  The guarantee of            reasonable access  thus has a formidable  reach, extending to            local regulatory  measures that  operate miles away  from any            interstate or national network highway.                 Many   of  these  measures  are  designed  to  safeguard            interests  other  than  safety.   Consider,  for  example,  a            restriction  that routed heavy traffic  on a detour  of a few            miles to assure quiet in a hospital zone.  It is difficult to            conceive that  Congress meant to exclude such  a concern from            the   calculus  used  to   determine  whether  a  restriction            infringes  on  "reasonable  access"  to  the  federal highway                                         -9-                                         -9-            system.  In this instance, language and policy are  as one in            opposing such a restrictive reading.                 The  sole  argument  for  limiting  the  restrictions to            safety  matters  stems  from  the  exception  provision,  now            codified as 49 U.S.C.   31114(b).   As a matter of  language,            this  provision  permits, but  does  not  compel, a  negative            inference that  the only restrictions allowed  under the main            provision are safety  restrictions.  Because subsections  (a)            and  (b) do not  fit neatly together,  it is  difficult to be            absolutely  certain of  Congress'  intent.   But for  several            reasons we reject the  suggestion that subsection (b) narrows            by inference the concept of reasonableness in subsection (a).                 First, the  negative inference is flawed as  a matter of            language.   By its terms  the safety exception  in subsection            (b) is  concerned not  with safety limitations  generally but            with restrictions on truck  tractor-semitrailer combinations.            If  the  exception  were  taken to  narrow  the  restrictions            permitted  under the main "reasonable access" provision, then            arguably  the  only  restrictions  allowed  would  be  safety                           ____            restrictions   directed   to   truck    tractor   semitrailer            combinations, an extremely odd result.                 Second,  the  original 1982  Surface  Act  contained the            reasonable  access language with  no exception  provision; so                                              __            nothing in 1982 suggested that state access restrictions were                                         -10-                                         -10-            limited  to those based on safety.1   If Congress in 1984 had            intended  to alter the  reasonable access provision  so as to            limit the states to safety restrictions, one might reasonably            expect  some indication  of  this  purpose  at least  in  the            legislative history.   Cf. Sierra Club v.  Secretary of Army,                                   ___ ___________     _________________            820  F.2d 513,  522 (1st  Cir. 1987).   Congress'  failure to            indicate any such purpose argues against appellants' reading.            Compare S. Rep. No. 505, 98th Cong., 2d Sess. 1-3 (1984).            _______                 The  truth  is  that  the  legislative  history  of  the            exception  provision  is meager.   See  New York  State Motor                                               ___  _____________________            Truck Ass'n  v. City  of New  York, 654  F. Supp.  1521, 1533            ___________     __________________            (S.D.  N.Y. 1987), aff'd 833 F.2d 430 (2d Cir. 1987) (quoting                               _____            two rather uninformative sentences).   Among other changes in            1984,  Congress expanded  somewhat  the  protected radius  in            which  truck tractor-semi-trailers  could operate  to include            their  points of  loading and  unloading.   Since this  was a            concern to state  officials, S. Rep. No.  505 at 1-3; 654  F.            Supp.  at 1531,  Congress evidently  balanced this  change by            adding subsection (b) as a counter-weight.                                            ____________________                 1Section 412  of  the Surface  Act,  96 Stat.  at  2160,            provided:                 No  State  may enact  or  enforce  any law  denying                 reasonable  access  to  commercial  motor  vehicles                 subject to this  title between  (1) the  Interstate                 and Defense Highway System and any other qualifying                 Federal-aid Primary System  highways as  designated                 by the Secretary, and (2) terminals, facilities for                 food,  fuel,  repairs,  and  rest,  and  points  of                 loading and unloading for household goods carriers.                                         -11-                                         -11-                 We  appreciate  that,  as  appellants point  out,  three            district  courts  have  made  references  to the  "reasonable            access"  provision as one directed to safety.2  But the state            restrictions with  which  those  cases  were  concerned  were            wholly  different  from  and  far  more  intrusive  than  the            Plaistow ordinance  and order, including  blanket limitations            on the distance vehicles could freely travel off the national            network and burdensome prior  approval provisions for the use            of local roads.  See 681 F. Supp. at 339-40; 654 F.  Supp. at                             ___            1529-30;  647 F.  Supp. at  1484-88.   Safety is  obviously a            paramount reason for limiting access; but, in our view, it is            not the only reason permitted by Congress.                 Having  concluded  that  the  district  court  correctly            construed  the Surface Act, we have no occasion to review the            court's  further, fact-specific  decision  that the  Plaistow            restrictions in this  case did permit reasonable access.  The            appellants scarcely bother to argue the point; in a couple of            sentences,   they  simply  assert  that  the  district  court            findings show that a  truck terminal must operate 24  hours a            day.   The opinion does not make such a finding, and we think            appellants' cursory argument waives the factual issue in this                                            ____________________                 2A.B.F. Freight  System, Inc.  v. Suthard, 681  F. Supp.                  ____________________________     _______            334, 341 (E.D. Va. 1988); New  York State Motor Truck, 654 F.                                      ___________________________            Supp. at 1539; Consolidated  Freightways Corp. of Delaware v.                           ___________________________________________            Larson,  647 F. Supp. 1479, 1483-84 (M.D. Pa. 1986), rev'd on            ______                                               ________            other grounds, 827 F.2d 916 (3d Cir. 1987), cert. denied, 484            _____________                               ____________            U.S. 1032 (1988).                                         -12-                                         -12-            case.   United States v. Zannino,  895 F.2d 1, 17 (1st Cir.),                    _____________    _______            cert. denied, 494 U.S. 1082 (1990).            ____________                 3.  The  truckers next contend that  the curfew violates            the  Hazardous Materials Transportation Uniform Safety Act of            1990 ("the  Materials Act"),  49 U.S.C.    5101 et seq.   The                                                            _______            Materials  Act establishes  uniform, national  rules for  the            transportation of hazardous materials  and, together with its            accompanying regulations, creates an elaborate scheme for the            designation, handling,  packaging, labeling, and  shipping of            hazardous materials.  Like the Surface Act, the Materials Act            contains   an  express  preemption  clause,  which  reads  in            relevant part as follows:                   5125.  Preemption                      (a)    General.--Except    as   provided    in                 subsections (b),  (c), and (e) of  this section and                 unless  authorized  by another  law  of  the United                 States,   a  requirement  of   a  State,  political                 subdivision   of  a  State,   or  Indian  tribe  is                 preempted if--                      (1) complying with a requirement of the State,                      political   subdivision,   or   tribe  and   a                      requirement  of this  chapter or  a regulation                      prescribed under this chapter is not possible;                      or                      (2)  the requirement  of the  State, political                      subdivision, or tribe, as applied or enforced,                      is  an obstacle to  accomplishing and carrying                      out  this chapter  or a  regulation prescribed                      under this chapter.                 The truckers contend that the curfew is preempted by the            second provision of the general preemption clause, because it            interferes with "the  federal speedy-transport mandate," N.H.                                                                     ____                                         -13-                                         -13-            Motor Transport Ass'n  v. Flynn,  751 F.2d 43,  51 (1st  Cir.            _____________________     _____            1984), codified at 49  C.F.R.   177.853(a): " [a]ll shipments            of   hazardous  materials   shall   be  transported   without            unnecessary   delay,   from  and   including   the  time   of            commencement  of the  loading of  the cargo  until its  final            discharge  at destination."  Much of  the Plaistow freight is            classified  as  hazardous.     Because  the  Plaistow  curfew            necessarily  entails  a delay  for  hazardous  materials, the            truckers say that it violates the Materials Act.                 By  using  the   word  "unnecessary,"  the   regulations            indicate  that some delays are necessary and acceptable.  See                                                                      ___            National Tank Truck Carriers,  Inc. v. City of New  York, 677            ___________________________________    _________________            F.2d  270, 275  (2d Cir. 1982)  (construing prior  version of            statute).  Once again, appellants  make little effort to show            that on  the present record the  specific curfew requirements            imposed by Plaistow  create any  risk to the  drivers of  the            trucks,  other   highway  traffic,  Plaistow   or  any  other            community.   The substance of the appellants' brief on appeal            is  that any regime that  creates a possibility  of a 12-hour            delay   in   delivery   ipso   facto   automatically  imposes                                    ____________            "unnecessary" delay.                   A  general, state-wide  restriction  is  obviously  more            vulnerable  to attack both because its impact is likely to be            much  greater  and because  it  treats  alike all  situations            regardless  of need or danger.   See   A.B.F. Freight System,                                             ___   _____________________                                         -14-                                         -14-            681  F. Supp.  at 345.   Quite  possibly a  local restriction            might  also unjustifiably  interfere with  hazardous shipment            movements,  either  standing  alone  or  in  combination with            restrictions in other  communities.  But  the burden is  upon            those  who attack  the restriction  is show  the impact.   At            least on  this appeal, appellants  have not even  attempted a            serious fact-specific showing.                 This case  is quite unlike National  Tank Truck Carrier,                                            _____________________________            Inc.  v. Burke, 698  F.2d 559  (1st Cir.  1983), in  which we            ____     _____            affirmed a  decision striking down  Rhode Island's state-wide            curfew  and  permitting  procedure  for  transporting certain            liquid  gas on  any Rhode  Island roadway.  By contrast,  the            curfew at issue  here involves one  terminal, is tailored  to            specific local conditions, and imposes no time restriction on            the delivery of hazardous materials in New Hampshire  so long            as   the  Plaistow  terminal  is  not  used  as  a  point  of            interchange.                 4.   The  truckers also  challenge the  district court's            dismissal  of their claim under the Noise Control Act of 1972            ("the Noise Act"), 42 U.S.C.    4901 et seq.  863 F. Supp. at                                                 _______            67-68.  That  statute created a federal  regulatory scheme to            set  noise  emission levels  for  motor  carriers engaged  in            interstate commerce.  Because the  curfew was imposed in part            to eliminate  the noise caused  by trucks,  the truckers  say            that it is preempted by the Noise Act.                                         -15-                                         -15-                 The   federal  noise  regulations  pertaining  to  motor            carriers do nothing more than set minimum and maximum decibel            levels  and exhaust  system and  tire standards  for trucking            equipment  that may operate on public roadways.  40 C.F.R.               202.20-202.23.    Accordingly,  no  state  or  town  may  set            different decibel levels for  motor carriers operating within            its jurisdiction.   But neither the Plaistow curfew order nor            the ordinance  it enforces  purports to regulate  the decibel            levels,  exhaust  systems,  or  tires  of individual  trucks.            Rather, noise levels  were one  element of  an equation  that            also included "odors, dust, smoke, refuse matter, fumes . . .            and vibration"  and that  prompted a limitation  on operating            hours for one specific site.                 The Noise Act preemption  clause underscores the limited            reach  of  that statute.   It  provides  in relevant  part as            follows:                 [A]fter the  effective date of  a regulation  under                 this   section   applicable   to  noise   emissions                 resulting from the  operation of any  motor carrier                 engaged   in  interstate  commerce,   no  State  or                 political  subdivision thereof may adopt or enforce                 any  standard applicable to  the same  operation of                 such   motor  carrier,  unless   such  standard  is                 identical  to  a   standard  applicable  to   noise                 emissions resulting from such  operation prescribed                 by any regulation under this section.            42 U.S.C.    4917(c)(1).  Admittedly,  the statutory language            is general ("any standard applicable to the same operation");            but we think  that it  would stretch the  words beyond  their            ordinary meaning to strike down a local curfew order based on                                         -16-                                         -16-            a  range  of concerns  where federal  law regulates  only the            decibel  levels  of the  equipment.   The  Noise Act  was not            designed to remove all state and local control over noise; on            the contrary, the  statute says that  "primary responsibility            for control of noise rests  with State and local governments.            . . ."  42 U.S.C.   4901(a)(3).                 5.   Finally, appellants argue that  the Plaistow curfew            is preempted under the Commerce Clause itself even if it does            not offend  any of  the individual  statutes  relied upon  by            appellants.   Since Congress has enacted  its own legislative            test  for  this case  ("reasonable  access"),  one might  ask            whether it is proper  for the courts to resort  separately to            the  more  general Commerce  Clause  rubrics.   Cf.  White v.                                                            ___  _____            Massachusetts  Council of  Construction Employers,  Inc., 460            ________________________________________________________            U.S.  204,  213 (1993).    Be that  as  it may,  applying the            general Commerce Clause tests does not alter the result.                 Absent any statute at all, the courts ask--in a case not            involving discrimination against interstate commerce--whether            "the  burden [on  interstate  commerce imposed  by the  local            restriction] is clearly excessive in relation to the putative            local benefits."  Pike  v. Bruce Church, Inc., 397  U.S. 137,                              ____     __________________            142  (1970).  The district  court found no  violation in this            case.     Even  if  we  reviewed   this  fact-specific  legal            determination  de novo, cf. Bose Corp.  v. Consumers Union of                           _______  ___ __________     __________________                                         -17-                                         -17-            United States, Inc.,  466 U.S.  485, 501 &  n.17 (1984),  our            ___________________            conclusion would be the same.                 Starting with "burden," in this case a night-time curfew            prevents  arrivals and  departures  at one  terminal, at  one            location in the  state, during six late-night  hours (from 11            p.m.  to 5  a.m.)  with lesser  restrictions for  three hours            (from 5 a.m. to 6  a.m. and from 9 p.m. to 11 p.m.).   For 15            hours  of  the day  (from 6  a.m. to  9  p.m.), there  are no                                                                       __            limitations.  The curfew does disadvantage this terminal vis-                                                                     ____            a-vis other terminals not so restricted, and somewhat impairs            _____            its profits;  but the  magnitude of the  disadvantage is  not            easy to isolate.                 The  evidence showed  that  customers  often want  early            morning delivery, and in some cases the curfew does limit the            ability  of  the   Plaistow/Newton  terminal  to  make   such            deliveries.  On the  other hand, there is no  indication that            customers cannot be served from  other terminals or that  the            flow of commerce into  and out of New Hampshire  is seriously            affected.   No  state wide  restriction is  involved, compare                                                                  _______            Kassel  v.  Consolidated  Freightways  Corp.,  450  U.S.  662            ______      ________________________________            (1981),  nor   is  a   major  artery  of   commerce  severely            constricted,  compare  Southern Pacific  Co. v.  Arizona, 325                          _______  _____________________     _______            U.S. 761 (1945).                 On  the other  side of  the scale,  the impact  on local            residents is  not some  remote or  conjectural specter.   The                                         -18-                                         -18-            curfew order  was obtained  only because of  local experience            with the terminal; and residents testified at trial about the            effect on their lives of unrestricted deliveries.  The curfew            is  akin  to zoning  and  traffic restrictions  traditionally            applied on a local level, cf. Christensen v. Yolo Cty. Bd. of                                      ___ ___________    ________________            Supervisors, 995  F.2d 161,  166 (9th Cir.  1993); Interstate            ___________                                        __________            Towing  Ass'n, Inc. v. Cincinnati,  6 F.3d 1154, 1163-65 (6th            ___________________    __________            Cir. 1993), and there is no regulation by federal authorities            that provides substitute protection.                 In sum, the burden of the  curfew on interstate commerce            has  not  been  shown to  be  excessive  in  relation to  the            benefits.   Congress has great latitude  to order preemption,            and  calibrate  it with  precision,  based  on a  legislative            judgment that local regulation threatens interstate commerce.            The  dormant Commerce Clause, by contrast,  is a fairly blunt            instrument;  and absent discrimination, courts may reasonably            insist on  a  fairly clear  showing  of undue  burden  before            holding  unconstitutional  a  traditional  example  of  local            regulation.  See Raymond  Motor Transportation, Inc. v. Rice,                         ___ ___________________________________    ____            434 U.S. 429, 443-44 (1978).  That showing  has not been made            on the record before us.                 Affirmed.                 ________                                         -19-                                         -19-
