Like the contaminated property that gave rise to it, the case before us demands careful handling. The pivotal question, heretofore untouched by any appellate court, is whether the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a), prevents a state from simultaneously creating and perfecting an environmental superlien on a debtor’s property after the institution of a bankruptcy proceeding. Both the bankruptcy court and the district court answered this surpass-ingly close question in the negative, holding that the environmental superlien evades the grasp of the automatic stay. We affirm.
I. BACKGROUND
The debtor, 229 Main Street Limited Partnership, owns a shopping plaza on Main Street in Natick, Massachusetts (the Property). For many years, a dry cleaning business leased space in the plaza. As a result, the Property became pro *1157 foundly contaminated with chemicals and other pollutants. In time, the Massachusetts Department of Environmental Protection (the Commonwealth) concluded that contamination from the Property posed a dire threat to drinking water in the town of Natick. To avert this threat, the Commonwealth spent large sums of money on emergency cleanup activities. It then sought reimbursement for these expenses, along with assurances in respect to anticipated future expenditures, from the debtor. Moreover, the Commonwealth informed the debtor, by letter dated November 5, 1998, that it intended to record a lien against the Property to secure present and future cleanup costs. See Mass. Gen. Laws ch. 21E, § 13 (the environmental superlien statute).
Initially, the debtor denied responsibility for the contamination and contested the dollar amount that the Commonwealth placed on cleanup costs. Accordingly, it demanded an adjudicatory hearing. See 310 C.M.R. § 40.1254. The hearing moved slowly. Before it concluded, the debtor filed a voluntary petition under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 1101-1174. By the debtor’s own admission, a principal reason behind this filing was a desire to avoid perfection of the Commonwealth’s lien. To that extent, the maneuver failed; the hearing officer ruled that the environmental superhen statute fell within an exception to the automatic stay and refused to adjourn the administrative proceeding.
The debtor countered by asking the bankruptcy court to hold the Commonwealth in contempt for continuing to press forward in the postpetition period. The bankruptcy court refused the debtor’s request. When the debtor appealed, the district court followed suit, ruling that the automatic stay did not preclude continuation of the proceedings necessary to perfect the Commonwealth’s environmental superlien.
See In re 229 Main St. Ltd. P’ship v. Mass. Dep’t of Envt’l Prot.,
II. THE STATUTES
As this case perches at a crossroads formed by the intersection of federal and state law, we set out the pieces of the statutory puzzle before attempting to fit them together. We begin with familiar fare: the automatic stay provision.
The automatic stay, 11 U.S.C. § 362(a), is one of the fundamental protections afforded to debtors by the bankruptcy laws.
Midlantic Nat’l Bank v. N.J. Dep’t of Envt’l Prot.,
While the automatic stay is an important part of the bankruptcy protection framework, it is not an absolute. Congress has crafted certain exceptions to the automatic stay. See id. § 362(b). One of them, pertinent here, makes the automatic stay inapplicable to “any act to perfect, or to maintain or continue the perfection of, an *1158 interest in property to the extent that the [bankruptcy] trustee’s rights and powers are subject to such perfection under section 546(b) of [the Bankruptcy Code].” Id. § 362(b)(3). The companion statute, 11 U.S.C. § 546(b), limits the debtor’s powers to avoid statutory liens 1 by providing that they “are subject to any generally applicable law that permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of perfection.” Id. § 546(b)(1)(A). Thus, sections 362(b)(3) and 546(b)(1)(A), read together, plot the boundaries of the exception to the automatic stay which is at issue here.
To this point, we have been discussing relevant federal statutes. But this appeal also involves a state environmental super-lien statute, Mass. Gen. Laws ch. 21E, § 13 (formally known as the Massachusetts Oil and Hazardous Material Prevention Act). The state legislature designed this statute to assure the prompt and efficient cleanup of hazardous materials.
2
Acme Laundry Co. v. Sec’y of Envt’l Affairs,
Any liability to the commonwealth [for cleanup costs] shall constitute a debt to the commonwealth. Any such debt ... shall constitute a lien on all property owned by persons liable under this chapter when a statement of claim naming such persons is recorded, registered or filed.... Any lien recorded, registered or filed pursuant to this section shall have priority over any encumbrance theretofore recorded, registered or filed with respect to any site ... described in such statement of claim.
Mass. Gen. Laws ch. 21E, § 13.
The question here is whether the environmental superlien fits within the exception described in sections 362(b)(3) and 546(b) of the Bankruptcy Code. The debtor argues that the superhen falls outside the narrow boundaries of the exception and thus succumbs to the automatic stay. The Commonwealth demurs, maintaining that its superlien comes within the safe harbor dredged by the exception and thus evades the automatic stay. In the pages that follow, we examine these dueling interpretations.
III. THE STATUTES IN ACTION
Eligibility for the pertinent exception to the automatic stay depends upon the existence vel non of three elements: there must be (1) an “act to perfect” (2) an “interest in property” (3) under circumstances in which the perfection-authorizing statute fits within the contours of section 546(b)(1)(A). We deal with the first two elements in Part 111(A), reserving the third for discussion in Part III(B).
A. Section 362(b)(3).
In parsing section 362(b)(3), we alter the natural progression: because the question *1159 of what constitutes an interest in property is crucial to the resolution of the questions that follow — both section 362(b)(3) and section 546(b)(1)(A) contain an “interest in property” requirement — we begin there.
1. “Interest in property.” The threshold question is whether the Commonwealth had a prepetition interest in the Property. 3 Although the parties are at loggerheads on a variety of issues, they are in perfect harmony on two important preliminary matters. First, the debtor acknowledges at this point in the proceedings that it was indebted to the Commonwealth. under chapter 21E. This is as it should be, for Massachusetts law makes it pellucid that once the Commonwealth expends any funds in connection with the assessment or cleanup of a contaminated property, a debt is created. See Acme Laundry, 575 N.E.2d at 1090. Second, it is beyond cavil that at the time the debtor sought the protection of the bankruptcy court, the Commonwealth had not recorded a lien against the Property.
These agreed facts bring us to the crucial question: Did the Commonwealth have an interest in the Property at the time the debtor filed its bankruptcy petition? On that issue, the harmony dissipates. The debtor contends that section 362(b) (3)’s “interest in property’-’ requirement only can be satisfied by the existence, prepetition, of a lien; and that, since no such lien was of record when the bankruptcy court’s jurisdiction attached, the Commonwealth had no interest in the Property (and, therefore, cannot qualify for the balm of section 362(b)(3)). The Commonwealth sings a different tune. It asserts that the term “interest in property,” as used in section 362(b)(3), is broader than the term “lien”;- and that it had a prepetition interest in the Property arising out of a medley of factors, including its expenditures for cleanup, its right to record a superlien, its notice to the debtor that it intended to record such a lien, and its taking of all possible administrative steps toward recor-dation.
We conclude that the term “interest in property” is not synonymous with the term “lien.” In arriving at this conclusion, we look first to the plain language of section 362(b)(3).
See Boivin v. Black,
Congress is familiar with the word “lien,” and used that word frequently in. drafting the Bankruptcy Code.
E.g.,
11 U.S.C. §§ 361(a), 364, 544(a), 545. It is an orthodox tenet of statutory construction that “where Congress includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
Duncan v.
*1160
Walker,
In an effort to force-feed its narrow construction of the phrase “interest in property,” the debtor points out that the Bankruptcy Code defines a lien as an “interest in property” (specifically, as an “interest in property to secure payment of a debt or performance of an obligation,” 11 U.S.C. § 101(37)). But the mere fact that a lien is one kind of interest in property does not mean that a lien is the only kind of interest in property recognized by section 362(b)(3).
Cf. Maryland Glass,
Finally, the debtor adverts to decisions that have equated an interest in property under section 362(b)(3) with a lien.
E.g., Equibank, N.A. v. Wheeling-Pittsburgh Steel Corp.,
That ends this phase of our inquiry. We hold that “interest in property,” as that term is used in 11 U.S.C. § 362(b)(3), is unequivalent to, and broader than, the term “lien.” With that definitional building block in place, we move to the question of whether, under Massachusetts law, the Commonwealth had an interest in the Property.
The parties reasonably assume that, under the environmental superlien statute, a debt comes into being once the Commonwealth has incurred expenses relating to the cleanup of a particular piece of property; the debt ripens into a lien when recorded; and recording the lien simultaneously perfects it.
See
Mass. Gen. Laws ch. 21E, § 13. But these reference points have limited utility for purposes of our inquiry: after all, a section 13 debt is not an interest in property,
see In re Microfab, Inc.,
In
Acme Laundry,
the Massachusetts Supreme Judicial Court (SJC) dealt extensively with the superlien statute. While the court did not directly answer the question before us, its discussion is quite helpful. For example, the SJC limned the statute’s central purpose: to assure that the costs of environmental cleanup are “borne by those who are responsible for the release because they own or owned the land or because they caused the spill.”
In this case, the debtor was liable to the Commonwealth for past and future cleanup costs; the Commonwealth had a present right to record a lien on the Property; and it had set that process in motion by notifying the debtor of its intentions and participating vigorously in the administrative hearing process. Viewing these facts through the prism of
Acme Laundry,
we conclude, as did the district court,
229 Main St,
We find support for this conclusion in the only reported case directly in point. In that case,
In re Perona Bros., Inc.,
2. “Act to perfect.” We next turn to the “act to perfect” requirement of section 362(b)(3). When the Commonwealth takes the step of recording under the environmental superlien statute, that act both creates and perfects its lien. See Mass. Gen. Laws ch. 21E, § 13. The debtor points out that while the automatic stay applies to “any act to create, perfect, or enforce,” 11 U.S.C. § 362(a)(4), section 362(b)(3) only exempts acts to perfect. 5 Based on this discrepancy, it concludes that an act which simultaneously creates and perfects cannot qualify for an exception to the automatic stay under section 362(b)(3).
At first glance, there seems to be a deep division of authority on this point — some bankruptcy courts permitting simultaneous postpetition creation and perfection of an interest in property pursuant to section 362(b)(3) and others prohibiting such a step. But this is not the issue that actually divides those courts. Instead, the courts split over the issue of what constitutes an interest in property, and that divergence drives the seeming disagreement over the status of “creation plus perfection.” In other words, courts that hew to the proposition that “interest in property” means “lien” do not allow simultaneous postpetition creation and perfection of hens, while contrary-minded courts tend to hold the opposite.
This dichotomy makes perfect sense. The availability of Section 362(b)(3) generally is thought to depend upon the existence of a prepetition interest in property.
See
3
Collier on Bankruptcy
¶ 362.05[5] (Lawrence P. King ed., 15th ed. rev. 2001) (“Section 362(b)(3) does not authorize the creation of new rights or interests for the creditor.”).
But cf. supra
note 3. If the particular interest is a lien, that lien must be in place prepetition before section 362(b)(3) can come into play. An act that both creates and perfects a lien postpetition cannot so qualify.
See, e.g., Louisville & Jefferson County Metro. Sewer Dist. v. Excel Eng’g, Inc. (In re Excel Eng’g, Inc.),
Courts which recognize that there is no necessary congruence between an interest in property and a lien end up in a different place. Such courts routinely read the section 362(b)(3) exception to leave room for the simultaneous postpetition creation and perfection of liens based on prepetition interests in property.
See, e.g., In re Summit Ventures, Inc.,
In our view, the plain language of section 362(b)(3) suggests the answer to the question of whether the environmental superlien statute’s simultaneous creation-plus-perfection model fits under the statutory umbrella. The statute provides in pertinent part that the automatic stay does not apply to “any act to perfect ... an interest in property....” Bearing in mind that “interest in property” is broader than “lien,” see supra Part 111(A)(1), this language appears to cover the simultaneous creation and perfection of a lien based on a prepetition interest in property. An act that both creates and perfects in one fell swoop is an act to perfect. Since section 362(b)(3) says that the filing of a bankruptcy petition does not automatically •stay an act to perfect, the simultaneous postpetition creation and perfection of a lien may come within the pertinent exception to the automatic stay so long as the creditor holds a valid prepetition interest in the property.
We buttress this conclusion with two practical observations. First, applying the debtor’s interpretation — that section 362(b)(3)’s use of the unembellished word “perfect” means that an act of combined creation and perfection remains subject to the automatic stay — would lead to an absurd result. Under the debtor’s theory, an act that effected the concurrent creation and perfection of a lien would, at one and the same time, be both stayed (by section 362(a)(4)) and exempted from the stay (by section 362(a)(3)). We decline to indulge in so schizophrenic a reading of the Bankruptcy Code.
Second, statutory liens often are created and perfected by the same act. Congress clearly intended section 546(b)’s limitation on the debtor’s avoidance power to extend to statutory liens; after all, section 546(b) specifically refers to section 545, which deals with the avoidance of statutory liens. Since Congress incorporated section 546(b) into the section 362(b)(3) exception, it is logical to infer that Congress intended that statutory liens would, at times, be exempt from the automatic stay. Under the debt- or’s interpretation, a significant class of statutory liens — those that are created and perfected by the same act — would never be exempt from the automatic stay. It seems difficult to reconcile this outcome with Congress’s discernible intent.
For these reasons, we conclude that the act of simultaneous creation and perfection effectuated by the Massachusetts environmental superlien statute qualifies as an “act to perfect” under section 362(b)(3).
B. Section 546(b).
The Bankruptcy Code delineates the scope of a debtor’s power to avoid certain creditor initiatives. But this power is circumscribed in certain respects. Insofar as it applies to statutory liens, this power cannot be exercised to curtail “any generally applicable law that permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of perfection.” 11 U.S.C. § 546(b)(1)(A). The purpose of section 546(b) is to “protect, in spite of the surprise intervention of a bankruptcy petition, those whom state law *1164 protects by allowing them to perfect their liens or interests as of an effective date that is earlier than the date of perfection.” H.R.Rep. No. 95-595, at 371-72 (1978), reprinted in 1978 U.S.C.C.A.N. 6327. For a particular creditor to reach the haven contemplated by section 546(b)(1)(A), three elements must coalesce: (1) the creditor must act pursuant to a law of general applicability; (2) that law must allow the creditor to perfect an interest in property; and (3) such perfection must be effective against previously acquired rights in the property.
The first of these elements requires little discussion. For a law to be “generally applicable,” it must apply to cases within and without the bankruptcy sphere.
See Makoroff v. City of Lockport,
The debtor asserts that the superlien statute does not permit “perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of perfection.” 11 U.S.C. § 546(b)(1)(A). To support this assertion, it makes three claims: that the Commonwealth held no prepetition interest in the Property; that perfection (here, the act of recording) is a prerequisite to establishing priority, but no act of recordation ever occurred; and that only state statutes that contain specific “relation back” language can come within the parameters of section 546(b). We address these claims sequentially.
Accepting for argument’s sake the debt- or’s view that section 546(b) requires an interest in property which arises prepetition, we nonetheless find the debtor’s ipse dixit that the Commonwealth had no pre-petition interest in the Property foreclosed by our earlier determination that the Commonwealth in fact enjoyed such a prepetition interest. See supra Part 111(A)(1). The debtor nimbly skips to another point — the lack of a section 13 lien on the Property. To be sure, there is no such lien — but that fact does not support the conclusion that the debtor draws from it. The only reason that the Commonwealth has not recorded a lien is that its efforts to convert its interest in the Property into a full-blown lien have been stalled by the debtor’s demand for an adjudicative hearing. This circumstance does not preclude us from resolving the issue of whether the environmental superlien statute measures up to the specific requirements imposed by section 546(b)(1)(A).
Last, the debtor suggests, citing a snippet plucked from section 546(b)’s legislative history, that a state statute must explicitly provide that perfection relate back to a prepetition date in order to fit within the safe harbor contemplated by section 546(b)(1)(A). There are three reasons why we find this suggestion unconvincing. The short response to it is that section 546(b)(1)(A) enunciates no such requirement, and courts cannot limit legislation by cavalierly conjuring up qualifications that the legislature has either eschewed or neglected to consider.
See Brogan v. United States,
The sockdolager is that the excerpt from the legislative history which the debtor hawks, read in context, does not contradict the statutory text. That excerpt states that “the rights granted under this subsection prevail over the trustee only if the transferee has perfected the transfer in accordance with applicable law and the perfection relates back to a date that is before the commencement of the case.” H.R.Rep. No. 95-595,
supra,
at 371,
reprinted in
U.S.C.C.A.N. at 6327. Contrary to the debtor’s importunings, this sentence does not impose a specific relation-back requirement; it merely reiterates that, to qualify for the safe harbor, the perfection must have a retroactive effect in the sense that once an interest is perfected it will take priority over earlier perfected interests.
See Klein v. Civale & Trovato, Inc. (In re Lionel Corp.),
The debtor has one more shot in its sling. It invites us to accord decretory significance to the fact that the legislative history mentions a section of the Uniform Commercial Code which contains an explicit “relation back” provision, U.C.C. § 9-301(2),
6
as an example of a statute that would find sanctuary in the safe harbor created by section 546(b)(1)(A).
See
H.R.Rep. No. 95-595,
supra,
at 371,
reprinted in
U.S.C.C.A.N. at 6327. Using this as a springboard, the debtor leaps to the conclusion that section 546(b)(1)(A) implicitly requires that a qualifying state statute contain an explicit “relation back” provision. This is simply too much of a stretch: while U.C.C. § 9-301(2) is one example of a state statute that fits under the wide umbrella of section 546(b)(1)(A), other types of statutes can find shelter there as well. The key is not relation back, but, rather, whether the statute in question provides for an interest that, once perfected, trumps earlier-filed claims.
See Lionel Corp.,
The three cases that the debtor cites in support of its argument that section 546(b)(1)(A) requires an explicit relation-back
provision
— Makoroff,
Makoroff
involved a situation in which local taxing authorities claimed, pursuant to section 546(b)(1)(A), that they had a right to a priority lien on the debtor’s property to secure unpaid property taxes accruing after bankruptcy proceedings had been instituted.
Shoreham Paper
is similarly inapposite. There, the bankruptcy court held that a tax lien created and perfected postpetition did not come within the ambit of 546(b)(1)(A) because the lien did not relate back to a prepetition date.
We regard
Prichard Plaza
as an outlier. There, the bankruptcy court coined an oddly suggestive phrase in construing section 546(b) as applying only to statutes that accorded “retroactive priority effect.”
As opposed to these cases, we find more persuasive the view of the only other court of appeals to have addressed the precise question. In
Lionel Corp.,
We now circle back to the original inquiry: whether the Massachusetts environmental superlien statute meets the second and third of section 546(b)(l)(A)’s stated criteria, that is, whether it “permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of perfection.” The gist of section 546(b)(1)(A) is that “the filing of a bankruptcy petition does not prevent the holder of an interest in property from perfecting its interest if, absent the bankruptcy filing, the interest holder could have perfected its interest against an entity acquiring rights in the property before the date of perfection.” 5
Collier on Bankruptcy, supra,
¶ 546.03[2][a], In this instance, the environmental superlien statute permits the perfection of an interest in property by recording, registering, or filing that interest.
See Microfab,
V. CONCLUSION
We need go no further. The statutory lien that the Commonwealth wishes to rec *1167 ord meets the combined requirements of section 362(b)(3) and 546(b)(1)(A) and therefore falls within the exception to the automatic stay carved out by those provisions. 7 Consequently, we uphold the decisions of the lower courts.
Affirmed.
Notes
. Many of these statutes refer to the trustee in bankruptcy, acting in the debtor’s stead. For simplicity's sake, we refer throughout to debtors (although such references encompass trustees wherever applicable).
. At least two Justices of the United States Supreme Court have signaled support for such state initiatives.
See Midlantic Nat’l Bank,
. The Commonwealth advances the argument that an interest in property need not arise prior to the filing of a bankruptcy petition in order to qualify for consideration under section 362(b)(3). Because we find that the Commonwealth had a prepetition interest in the Property, see text infra, we need not reach the question of whether a postpetition interest, 'standing alone, could satisfy this element -of the test.
. To be sure, the specific holding in Parr Meadows has been rendered moot by the enactment of 11 U.S.C. § 362(b)(18) (providing that the filing of a bankruptcy petition does not operate as a stay “of the creation or perfection of a statutory lien for an ad valo-rem property tax ... if such tax comes due after the filing of the petition”). The reasoning of the Pan■ Meadows court nonetheless remains instructive, and we cite to the opinion on that basis.
. In terms, the statute also exempts acts to maintain and continue perfection. 11 U.S.C. § 362(b)(3). Those categories are irrelevant for present purposes (and, thus, we disregard them).
. Under U.C.C. § 9-301(2) the perfection of a purchase money security interest within a certain interval relates back to the date upon which the interest was acquired.
See, e.g., In re Fiorillo & Co.,
. In its appellate briefs, the debtor theorizes that placing environmental superliens outside the Bankruptcy Code’s automatic stay provision frustrates congressional intent (and, therefore, offends the Supremacy Clause). Because this argument was not raised below, it is waived.
See Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co.,