
USCA1 Opinion

	




          May 4, 1993                                 ____________________        No. 92-1040                       IN RE HEMINGWAY TRANSPORT, INC., ET AL.,                                       Debtors,                                                                                      ______                       JUNIPER DEVELOPMENT GROUP, ETC., ET AL.,                                     Appellants,                                          v.                                HERBERT C. KAHN, ETC.,                                      Appellee.                                _____________________        No. 92-1095                       IN RE HEMINGWAY TRANSPORT, INC., ET AL.,                                       Debtors,                                                                                      ______                       JUNIPER DEVELOPMENT GROUP, ETC., ET AL.,                                          v.                                HERBERT C. KAHN, ETC.,                                      Appellant.                                _____________________        No. 92-1289                       IN RE HEMINGWAY TRANSPORT, INC., ET AL.                                       Debtors,                                                                                      ______                       JUNIPER DEVELOPMENT GROUP, ETC., ET AL.,                                     Appellants,                                          v.                                HERBERT C. KAHN, ETC.,                                      Appellee.                                _____________________        No. 92-1290                       IN RE HEMINGWAY TRANSPORT, INC., ET AL.,                                       Debtors,                                                                                      ______                       JUNIPER DEVELOPMENT GROUP, ETC., ET AL.,                                      Appellees,                                          v.                                HERBERT C. KAHN, ETC.,                                      Appellant.                                _____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________             Roy P. Giarrusso with  whom Louis N. Massery and  Cooley, Manion,             ________________            ________________      _______________        Moore & Jones, P.C. were on brief for appellants.        ___________________             William F. Macauley  with whom  Martin P. Desmery  and Craig  and             ___________________             _________________      __________        Macauley were on brief for appellee.        ________             Martin P. Desmery for trustee appellee in cross-appeal.             _________________                                 ____________________                                 ____________________                    CYR, Circuit  Judge.   The bankruptcy  court disallowed                    CYR, Circuit  Judge.                         ______________          the contingent claim Juniper  Development Group ("Juniper") filed          against the consolidated chapter 7 estate of Hemingway Transport,          Inc.  ("Hemingway") and Bristol  Terminals, Inc.  ("Bristol") for          anticipated  response costs  for the  removal and  remediation of          hazardous substances discovered  on property previously purchased          by Juniper from  the Hemingway-Bristol chapter  11 estate.   Jun-          iper's  companion claim  for  cleanup-related  attorney fees  was          disallowed  as well.   The  district court  affirmed and  Juniper          appeals.   The  chapter 7  trustee ("trustee")  cross-appeals the          allowance of Juniper's  priority claim for past  cleanup costs as          an administrative expense.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Between 1963  and 1982, Hemingway and  Bristol continu-          ously  owned or  operated a  trucking  business conducted  from a          twenty-acre  parcel  of  land  located  in Woburn,  Massachusetts          ("facility").1   In  May  1980, the  Massachusetts Department  of          Environmental  Quality  Engineering  (DEQE) discovered  seventeen          corroded drums  leaching a semi-solid, tar-like  substance onto a          13.8 acre "wetlands" area at the facility.  DEQE informed Heming-          way that  the substance  contained petroleum constituents.   DEQE                                        ____________________               1Hemingway began business operations at the facility shortly          after  acquiring it in 1963. In 1974, Hemingway sold the facility          to Woburn Associates, but  continued to occupy it under  a lease-          back arrangement with Woburn.   In 1980, Bristol, a  wholly owned          Hemingway subsidiary, acquired the facility from Woburn.                                          4          received  assurances  from  Hemingway  that the  drums  would  be          removed.  The drums were still at the facility when DEQE conduct-          ed its last site inspection, in August 1982.                    In July  1982, Hemingway  and Bristol filed  chapter 11          petitions.  With the approval of the  bankruptcy court, appellant          Juniper,  a local  land  developer, purchased  the facility  from          debtor-in-possession Bristol for $1.6  million on April 29, 1983.          Prior to the purchase, Juniper's representatives conducted an on-          site inspection but did not walk the wetlands area where DEQE had          discovered  the drums;  Juniper contends that  the area  was sub-          merged at the time.  Seven months  after the sale, the Hemingway-          Bristol chapter  11 reorganization proceeding was  converted to a          chapter 7  liquidation proceeding,  and a  chapter 7 trustee  was          appointed.                    In April  1985, drums  containing various  solvents and          pesticides classified as "hazardous substances" under the Compre-          hensive  Environmental Response, Compensation,  and Liability Act          ("CERCLA"),  42 U.S.C.    9601-9657,  9601(14) (1981),  were dis-          covered at the facility, in the same wetlands area, by the United                                          ____ ________ ____          States  Environmental Protection  Agency ("EPA").   The following          December,  Juniper, then  the "owner"  of the  facility, received          notice that the EPA considered Juniper a "potentially responsible          party" ("PRP") under CERCLA, see id.   9607(a).  Shortly thereaf-                                       ___ ___          ter the EPA issued  an administrative order requiring Juniper  to          remove  the  hazardous substances  from the  facility at  its own                                          5          expense.  See  id.   9606.   Juniper claims  $92,088 in  response                    ___  ___          costs incurred pursuant to the EPA administrative order.2                    Juniper initiated  an adversary proceeding  against the          Hemingway-Bristol   estate  for  CERCLA  response  costs  already          incurred  under  the  EPA  administrative order  and  for  future          response costs  required to complete the  anticipated cleanup and          remediation.   Initially, the bankruptcy court  denied the trust-          ee's  motion for summary judgment on Juniper's CERCLA claim.  The          court  determined  that  Juniper's CERCLA  claim,  if  ultimately          allowed, would be entitled to priority payment from the chapter 7          estate as  an administrative  expense of  the chapter  11 estate,          since Juniper's exposure to CERCLA liability had arisen  from its          postpetition agreement to purchase  the facility from the chapter          11 estate.    In re  Hemingway Transp.,  Inc., 73  B.R. 494,  505                        _______________________________          (Bankr. D. Mass. 1987) (citing Reading Co. v. Brown, 391 U.S. 471                                         ___________    _____          (1968)).3                                        ____________________               2Juniper alleges  that an engineering firm  was paid $30,208          to remove the drums;   an environmental consulting firm  was paid          $7,880 to monitor  the removal  action; and a  law firm was  paid          $54,000 to ensure adequate compliance with the EPA order.               In April 1988, EPA demanded $2.1 million in CERCLA contribu-          tion  from Juniper  for costs  incurred by  EPA in  assessing and          evaluating the site.   The PRP notice advised that  Juniper would          be  notified  of future  "cleanup response  costs"  as well.   In          February  1989, EPA sent PRP notices to Hemingway and Bristol, as          former owner-operators of the facility.  See infra note 9.                                                   ___ _____               3Although count I of the original Juniper  complaint did not          assert a right to CERCLA contribution, when the trustee's  motion          for summary judgment on  count I was denied the  bankruptcy court          allowed Juniper to amend count I  to assert a claim for contribu-          tion under 42 U.S.C.   9607(a).  In re Hemingway Transp., 73 B.R.                                           _______________________          at 507-08. See  also infra note  20.  The  court entered  summary                     ___  ____ _____          judgment for the trustee  on count II, which alleged  a breach of          warranty by Bristol, and on Count III, which sought rescission of                                          6                    The trustee renewed the  motion for summary judgment on          Juniper's claim for  future response costs, and  moved for recon-                               ______          sideration of the  "administrative expense priority" ruling  pre-          viously entered by  the bankruptcy court.   The bankruptcy  court          then  disallowed  Juniper's  claim  for  future  response  costs,                                                   ______          pursuant to Bankruptcy  Code   502(e)(1)(B), 11  U.S.C.   502(e)-          (1)(B), on the ground that Juniper was the holder of a contingent          CERCLA  contribution claim  based on  a debt  owed EPA  for which          Juniper,  Hemingway,  and  Bristol  were  jointly  and  severally          liable, in connection  with which  Juniper had yet  to incur  any          liability  by the  time of  the allowance  of its  claim.   In re                                                                      _____          Hemingway Transp.,  Inc., 105 B.R.  171, 176-78 (Bankr.  D. Mass.          ________________________          1989).    The  bankruptcy  court reaffirmed  its  earlier  ruling          entitling Juniper to administrative expense priority on its claim          for past response costs.              ____                    Following trial  on Juniper's $92,088 claim  for CERCLA          response costs previously  incurred, the  bankruptcy court  ruled          that Hemingway  and Bristol were responsible  parties "liable" to          the EPA,  as they either  owned or  operated the facility  at the                                        ____________________          the land-sale agreement on  the ground of fraudulent misrepresen-          tation.  As  to count II, the bankruptcy court  held that Juniper          had  forfeited any  right to  recover for  breach of  warranty by          representing in the contract  that it had "made all  such inspec-          tions of the premises as [it] wishe[d] to make."  Id. at 506.  As                                                            ___          to  count III, the bankruptcy  court held that  Juniper failed to          allege fraud with the requisite particularity.  Id. (holding that                                                          ___          Massachusetts  law  requires  more  than proof  of  the  seller's          nondisclosure  of  a known  defect;  it requires  proof  that the          seller  deliberately  concealed,  or  prevented  the  buyer  from          discovering,  known defects).   Juniper  does not  challenge this          bankruptcy court ruling.                                          7          time a passive "disposal" of hazardous substances occurred at the          facility.    In re  Hemingway Transp.,  Inc.,  108 B.R.  378, 380                       _______________________________          (Bankr.  D. Mass.  1989) (holding  that CERCLA  liability arising          from  "disposal"  need  not  result from  affirmative  acts,  but          encompasses "leaking" of previously deposited waste during  PRP's          ownership) (citing  United States v. Waste Indus., Inc., 734 F.2d                              _____________    __________________          159, 164 (4th Cir. 1984)).  Significantly, however, the bankrupt-          cy  court noted no  evidence that Hemingway  or Bristol, notwith-          standing their continuous ownership or possession of the facility          for  a  period of  twenty  years, either  generated  or deposited          hazardous wastes at the facility.  Id. at 380.                                             ___                    The bankruptcy  court allowed Juniper's  claim for past          response  costs in  the amount  of $38,763  as  an administrative          expense entitled to priority payment, id. at  382, but disallowed                                                ___          the  $54,000 claim  on  the ground  that  attorney fees  are  not          recoverable in a private  action under 42 U.S.C.   9607(a)(4)(B).          Id. at 383.  Juniper appealed the rulings   disallowing its claim          ___          for future response  costs and  for attorney fees.   The  trustee          cross-appealed  the order  allowing  Juniper's  $38,763  priority          claim for  administrative expense.  The  district court affirmed.          In re Hemingway Transp., Inc., 126 B.R. 656 (D. Mass 1991).          _____________________________                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Juniper's Appeal:  Disallowance of Future          A.   Juniper's Appeal:  Disallowance of Future               Response Costs (11 U.S.C.   502(e)(1)(B).               Response Costs (11 U.S.C.   502(e)(1)(B).               _______________________________________               1.   The Intersection of CERCLA and the Bankruptcy Code.               1.   The Intersection of CERCLA and the Bankruptcy Code.                    __________________________________________________                                          8                              Juniper  finds  itself  stranded  at  the  increasingly          crowded  "intersection"  between the  discordant  legislative ap-          proaches embodied  in CERCLA and the Bankruptcy  Code.  See In re                                                                  ___ _____          Chateaugay  Corp., 944 F.2d 997,  1002 (2d Cir.  1991).  CERCLA's          _________________          settled policy  objectives, reemphasized in the  Superfund Amend-          ments  and  Reauthorization  Act  of 1986  ("SARA"),  prominently          include the expeditious cleanup  of sites contaminated or threat-          ened  by hazardous  substance  releases which  jeopardize  public          health and safety, and the equitable allocation  of cleanup costs          among all  potentially responsible persons ("PRPs").   See United                                                                 ___ ______          States  v.  Cannons Eng'g  Corp., 899  F.2d  79, 90-91  (1st Cir.          ______      ____________________          1990); see  also B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198                 ___  ____ _________________    ______          (2d Cir. 1992).   The PRP class broadly encompasses,  inter alia,                                                                _____ ____          past and current owners or operators of a contaminated  facility.          See 42 U.S.C.   9607(a). To  foster CERCLA's primary objective             ___          promotion of spontaneous private  cleanup initiatives    all PRPs          are deemed strictly  liable for the total response costs required          to  remediate the contaminated  facility.   See United  States v.                                                      ___ ______________          Kayser-Roth Corp., 910  F.2d 24,  26 n.3 (1st  Cir. 1990),  cert.          _________________                                           ____          denied, 111 S. Ct. 957 (1991).  Strict liability is normally both          ______          joint and several.  See O'Neil v. Picilli, 883 F.2d 176, 178 (1st                              ___ ______    _______          Cir. 1989), cert. denied, 493 U.S. 1071 (1990); see also New York                      ____  ______                        ___ ____ ________          v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.  1985).4  And             __________________                                        ____________________               4The defendant in  an EPA enforcement  action would have  an          especially heavy burden to establish that the shared responsibil-          ity of  the PRPs is divisible, so as to elude imposition of joint          and  several liability.  Cf.  O'Neil, 883 F.2d  at 178-79 ("[R]e-                                   ___  ______                                          9          the  EPA  is invested  with  broad  administrative discretion  to          compel PRPs  to undertake immediate cleanup  measures, a preroga-          tive largely  insulated from judicial review  at the pre-enforce-          ment stage.  See  42 U.S.C.   9606; see also  42 U.S.C.   9613(f)                       ___                    ___ ____          (PRPs who settle with EPA are immune from subsequent contribution                                        ____________________          sponsible  parties rarely  escape  joint  and  several  liability          [because] it  is [often] impossible  to determine  the amount  of          environmental  harm  caused by  each  party.");  see also  United                                                           ___ ____  ______          States  v. Chem-Dyne Corp., 572  F. Supp. 802,  808-10 (S.D. Ohio          ______     _______________          1983).  However, in a  CERCLA contribution action among responsi-                                                            _____          ble parties who are  jointly and severally liable, the  burden of          proof  is  less  demanding,  though the  court  nevertheless  may          undertake a comparable allocation  of the relative  responsibili-          ties of the joint  obligors.  See 42 U.S.C.    9613(f)(1) ("[T]he                                        ___          court may allocate response costs among liable parties using such          equitable factors as the court determines are appropriate."); see                                                                        ___          also  Smith Land & Improvement  Corp. v. Celotex  Corp., 851 F.2d          ____  _______________________________    ______________          86, 90  (3d Cir. 1988), cert.  denied, 488 U.S. 1029  (1989).  In                                  ____   ______          approaching these divisibility and  apportionment determinations,          the  courts  have relied  on  various  guideposts, including  the          legislative history in general,  and the so-called "Gore Factors"          in particular:               (i)  the ability  of  the parties  to demonstrate  that               their  contribution to a discharge, release or disposal               of a hazardous waste can be distinguished;               (ii) the amount of the hazardous waste involved;               (iii)  the degree  of toxicity  of the  hazardous waste               involved;               (iv) the degree  of involvement by  the parties in  the               generation,  transportation,   treatment,  storage,  or               disposal of the hazardous waste;               (v) the degree  of care exercised  by the parties  with               respect to the hazardous  waste concerned, taking  into               account  the characteristics  of such  hazardous waste;               and               (vi)  the degree  of  cooperation by  the parties  with               Federal, State  or local officials to  prevent any harm               to the public health or the environment.          Environmental Transp.  Sys., Inc. v.  Ensco, Inc., 969  F.2d 503,          _________________________________     ___________          508-09 (7th  Cir. 1992)  ("Gore factors" provide  a nonexhaustive          but  valuable roster  of equitable  apportionment considerations)          (quoting United States v. A & F Materials Co., Inc., 578 F. Supp.                   _____________    _________________________          1249, 1256 (S.D. Ill. 1984)).                                          10          claims); In re CMC  Heartland Partners, 966 F.2d 1143,  1148 (7th                   _____________________________          Cir. 1992).                    At the  same time,  however, CERCLA section  9613(f) is          aimed  at promoting equitable  allocations of financial responsi-          bility by authorizing PRPs subjected to pending  or completed EPA          enforcement actions under 42  U.S.C.    9606 and 9607(a)(4)(A) to          initiate private  actions for  full or partial  contribution from                                                          ____________          nonsettling  PRPs by way  of impleader or  an independent action.          See  42 U.S.C.   9613(f).5   Thus, targeted PRPs,  relying on the          ___          ultimate financial accountability  of more  "culpable" PRPs,  are          encouraged  to initiate  prompt  response efforts,  at their  own          expense,  in cooperation with  the EPA.   See H.R. Rep.  No. 253,                                                    ___          99th Cong.,  1st Sess.  80, reprinted  in 1986 U.S.C.C.A.N.  2835                                      _____________          ("Private  parties may be  more willing  to assume  the financial          responsibility for some or all of the cleanup if they are assured          that  they can  seek contribution  from others.");  In re  Dant &                                                              _____________          Russell, Inc., 951 F.2d 246, 248 (9th Cir. 1991).          _____________                                        ____________________               5Section 9613(f)(1) provides:               Any person may seek  contribution from any other person               who is  liable  or  potentially  liable  under  section               [9607(a)], during or  following any civil action  under               section [9606] or under section [9607(a)].  Such claims               shall be  brought in  accordance with this  section and               the  Federal Rules  of  Civil Procedure,  and shall  be               governed  by Federal  law.   In  resolving contribution               claims,  the court  may allocate  response costs  among               liable  parties  using such  equitable  factors as  the               court  determines  are appropriate.    Nothing  in this               subsection shall  diminish the  right of any  person to               bring an action  for contribution in  the absence of  a               civil action under section [9606] or section [9607].          42 U.S.C.   9613(f).                                          11                    On the other hand, Bankruptcy Code   502(e)(1)(B) often          serves  to forestall  CERCLA's intended  equitable allocation  of          responsibility,  as occurred  in  this case  when the  bankruptcy          court disallowed  Juniper's estimated  claim for $6.2  million in          anticipated future  CERCLA response costs.   Section 502(e)(1)(B)          provides, in pertinent part:                    [T]he  court  shall  disallow any  claim  for                    reimbursement  or  contribution of  an entity                    [viz., Juniper] that is liable with the debt-                     ____                    or [Hemingway-Bristol] on or has secured, the                    claim of a creditor [EPA], to the extent that                                          . . . .                         (B) such claim for reimbursement or con-                         tribution is  contingent as of  the time                         of  allowance  or  disallowance of  such                         claim for  reimbursement or contribution                         . . . .          11  U.S.C.   502(e)(1)(B).  There  can be little  doubt that, but          for  section 502(e)(1)(B),  the  Hemingway-Bristol  estate  would          share some measure of financial responsibility for the anticipat-          ed $6.2 million  in future  response costs on  which the  Juniper          claim is based.                    Nevertheless, section 502(e)(1)(B) would mandate disal-          lowance  of  the  Juniper  claim  against  the  Hemingway-Bristol          chapter 7 estate if Juniper is jointly liable with the Hemingway-          Bristol  estate on the  same "debt"  for estimated  future CERCLA                                  ____          response  costs to  EPA, and  Juniper's right  to payment  on its          claim    denominated a claim for reimbursement or contribution             remained "contingent" at the time of its disallowance.  See In re                                                                  ___ _____                                          12          Provincetown-Boston Airlines, 72 B.R.  307, 309 (Bankr. M.D. Fla.          ____________________________          1987).  The bankruptcy  court, citing In re Charter Co., 862 F.2d                                                _________________          1500 (11th Cir. 1989), held that the Juniper  claim met all three          criteria for  disallowance  under section  502(e)(1)(B).   First,          Juniper  denominated its  claim as  one for  "indemnification" or          "contribution."  But see  infra  note 22.    Second, Juniper  and                           ___ ___  _____          Hemingway-Bristol  are  "liable" to  the  EPA  for future  CERCLA          response costs (hereinafter:   the "EPA debt") because  all three          entities were designated  PRPs by  the EPA.   Third, the  Juniper          claim  is  "contingent" because  the  EPA has  issued  no further          cleanup orders against Juniper;  hence, additional cleanup of the          facility may not be required.  In re Hemingway Transp., 105  B.R.                   ___                   _______________________          at 177-78.               2.   Applicability of Section 502(e)(1)(B) to CERCLA Claims.               2.   Applicability of Section 502(e)(1)(B) to CERCLA Claims.                    ______________________________________________________                    Section 502(e)(1)(B) was enacted for one purpose    "to          prevent[] competition  between a  creditor and his  guarantor for                    ___________  _______ _  ________ ___ ___  _________          the  limited proceeds of  the estate."   H.R. Rep. No.  595, 95th          Cong., 1st  Sess. 354  (1977); S.  Rep. No.  989, 95th Cong.,  2d          Sess. 65 (1978) (emphasis added).  Normally, section 502(e)(1)(B)          is invoked against claims  based on debts or  obligations arising          from voluntary contractual relationships.  Even in the context of          a CERCLA-based,  quasi-"tort" obligation, however,  the practical          need  for section  502(e)(1)(B)  is  evident;  that is,  but  for          section 502(e)(1)(B),  see infra note  6, an estimation  of Juni-                                 ___ _____          per's claim for anticipated response costs, see 11  U.S.C.   502-                                                      ___          (c)(1), would entitle Juniper to share in the distribution of the                                          13          insolvent  chapter 7  estate under  Bankruptcy Code    726(a), 11          U.S.C.   726(a), see, e.g.,  In re Butterworth, 50 B.R.  320, 322                           ___  ____   _________________          (Bankr. W.D. Mich. 1984), notwithstanding that its claim remained          "contingent" until such time  (if ever) as EPA were  to call upon          Juniper to  pay  any future  CERCLA response  costs incurred  for          further cleanup or remediation of the facility.                    The  Code's expansive  definition  of  "claim"  permits          automatic allowance  of most "contingent" claims,  see Bankruptcy                                                             ___          Code    101(4),  502(a), 11  U.S.C.    101(4), 502(a),  against a          chapter 7 estate upon timely filing, see id.    501, 726; Fed. R.                                               ___ ___          Bankr. P.  3002(c).   The bankruptcy  court simply  estimates the          amount  of the  claim  for purposes  of  its allowance,  see  id.                                                                   ___  ___            502(c)(1), discounting its value  to reflect the uncertainty of          the  contingency, in order  to enable the holder  to share in the          distribution  of the insolvent estate.6  On the other hand, where                                        ____________________               6Under CERCLA   9607(a)(4)(B), see pp. 32-35 infra, "contri-                                              ___           _____          bution"  relief is restricted to  damages for past response costs                                                        ____          (i.e., costs  already "incurred").   On  the other  hand, section           ____          9613(g)(2) authorizes a declaratory  judgment action to determine          liability  for response  costs  which  "will  be binding  on  any          subsequent action or actions to recover further response costs or          damages," a  form of relief plainly  encompassed within Juniper's          amended  complaint.  See In re Chateaugay Corp., 944 F.2d at 1008                               ___ ______________________          (noting  that, notwithstanding  CERCLA's  ban on  pre-enforcement          judicial review,  a bankruptcy  court may estimate  CERCLA claims          pursuant to Bankruptcy Code    502(c)(1), "with ultimate liquida-          tion of the claims to await the outcome of normal CERCLA enforce-          ment  proceedings").    A  "contingent" claim  predicated  on  an          otherwise valid  declaratory judgment  entered  pursuant to  sec-          tion 9613(g)(2) would  be subject to estimation.   See Bankruptcy                                                             ___          Code   502(c)(1), 11 U.S.C.   502(c)(1) ("There shall be estimat-          ed for purposes of allowance under this section . . . any contin-          gent  or unliquidated claim, the fixing  or liquidation of which,          as  the case may be, would unduly delay the administration of the          case. . . .").                                          14          the filing  of a contingent claim for  contribution or reimburse-          ment entails risk that the assets of the chapter 7 estate will be          exposed  to "double-dipping"  by holders  of the  same underlying          claim  against the estate,  section 502(e)(1)(B)  mandates disal-          lowance  of the  contingent claim.   The  sole purpose  served by          section 502(e)(1)(B) is to preclude redundant recoveries on iden-          tical  claims  against  insolvent  estates in  violation  of  the          fundamental  Code policy  fostering equitable  distribution among          all  creditors of the same class.  The "double-dipping" threat in          the present  case would result from the  allowance and estimation          of Juniper's contingent claim, and the allowance of an EPA claim,          for the same future  CERCLA response costs against the  chapter 7          estate.                    Section 502(e)(1)(B) is a  fair and reasonable  measure          as applied  against a contract  guarantor or surety.   Confronted          with the prospect that its contingent  claim for reimbursement or          contribution  against a chapter 7 debtor estate may be subject to          disallowance under  section 502(e)(1)(B), an entity  may elect to          cause its contingent  contract claim to  become "fixed" prior  to          disallowance, see Bankruptcy Code   502(e)(2), by itself satisfy-                        ___          ing the debt due the creditor  of the debtor estate, leaving  the          entity as the sole holder of a claim against the  estate based on          that debt.7  See, e.g., In re Baldwin-United Corp., 55 B.R.  885,                       ___  ____  __________________________                                        ____________________               7Section 502(e)(2) provides:               A claim  for reimbursement  or contribution of  such an               entity that becomes fixed after the commencement of the               case shall  be determined,  and shall be  allowed under                                          15          895 (Bankr.  S.D. Ohio  1985).  On  the other  hand, the  section          502(e)(2)  "fixing"  option  presents  an   especially  difficult          dilemma for an owner or operator of a  targeted facility, such as          Juniper,  involved  in  a  Superfund contribution  action.    The          onerous CERCLA  remediation process  may take years  to complete,          leaving  PRPs  holding  the  bag; that  is,  holding  unallowable                                                                ___________          contingent claims for contribution  or reimbursement against  the          chapter 7 estate, claims  typically totaling millions of dollars.          In such  circumstances, section 502(e)(1)(B) may  operate to pre-          clude innocent PRPs from recovering CERCLA response costs from  a          chapter 7  estate even though  the estate clearly  is responsible          for all or  part of the environmental contamination.   If the EPA          opts  to refrain from participating  in any distribution from the          chapter 7 estate, as  it may do simply  by not filing a proof  of          claim,  Juniper may end up as the only potential EPA enforcement-          action target still left standing and  solvent.8  Thus, sometimes                                        ____________________               subsection (a), (b),  or (c) of this section, or disal-               lowed under subsection (d) of this section, the same as               if such claim had  become fixed before the date  of the               filing of the petition.          11 U.S.C.   502(e)(2).               8EPA  enforcement actions  generally are  excepted  from the          automatic stay  provisions.  See Bankruptcy  Code   362(b)(4), 11                                       ___          U.S.C.   362(b)(4); New York v. Exxon Corp., 932 F.2d 1020, 1024-                              ________    ___________          25  (2d Cir. 1991).  Even were the  EPA to reduce to judgment its          claim  for prepetition  damages  against the  chapter 7  debtors,          however,  the  judgment  would  not be  enforceable  against  the          debtors' estate  except through  the normal claim  allowance pro-          cess.   See Bankruptcy  Code   362(b)(5), 11  U.S.C.   362(b)(5).                  ___          Moreover, corporate debtors cannot receive a discharge, see id.                                                                    ___ ___          727(a)(1),  11 U.S.C.    727(a)(1)  ("The court  shall grant  the          debtor a  discharge, unless . . . the debtor is not an individual          . . . .").   Consequently, virtually all such  chapter 7 proceed-                                          16          the fundamental policy embodied in Bankruptcy Code   502(e)(1)(B)          may  promote  an  expeditious  administration of  the  chapter  7          estate, see In re  American Continental Corp., 119 B.R.  216, 217                  ___ _________________________________          (Bankr.  D. Ariz. 1990), at  the expense of  a fundamental CERCLA          policy:  the equitable  allocation of environmental cleanup costs          among all responsible parties.                    Although  section  502(e)(1)(B) may  have  been devised          primarily  with  contract-based  codebtor  relationships  in mind          _________          (e.g., guaranties,  suretyships), however, its  language ("liable           ____          with")  has been found too  plain and inclusive  to exempt "joint          and several" tort-based obligations from disallowance, see, e.g.,                                                                 ___  ____          In re American  Continental, 119 B.R. at 217;  In re Pacor, Inc.,          ___________________________                    _________________          110  B.R. 686, 688 (E.D. Pa. 1990);  In re Wedtech Corp., 87 B.R.                                               ___________________          279,  284 (Bankr. S.D.N.Y.  1988), and the  Bankruptcy Code else-          where carves  out no exception for this variety of co-obligation.          Moreover, even though CERCLA  and SARA postdate the  enactment of          Bankruptcy Code   502(e), and  plainly envision private rights of          action for  CERCLA  contribution as  inducements  to  spontaneous          private cleanup  efforts by PRPs,  neither environmental  statute          alludes to the Bankruptcy Code,  let alone exempts CERCLA contri-          bution claims  from the Code's  normal claim  procedures.   Thus,          notwithstanding the purposive liberality with which courts are to          construe CERCLA's remedial provisions,  see Kayser-Roth, 910 F.2d                                                  ___ ___________          at 26 ("'[W]e will  not interpret section 9607(a) in any way that                                        ____________________          ings  end with the debtor  in dissolution and  its corporate cup-          board bare.                                          17          apparently frustrates the statute's goals.'") (citation omitted),          Bankruptcy Code   502(e)(1)(B) obliges a  construction consistent          with  its plain terms.   See Norwest Bank  Worthington v. Ahlers,                                   ___ _________________________    ______          485 U.S. 197,  206 (1988) ("[W]hatever equitable powers remain in          the  bankruptcy courts must and  can only be exercised within the          confines of the Bankruptcy Code.").                    Finally, we discern no inherent incompatibility between          section  502(e)(1)(B) and  the congressional  policies underlying          CERCLA,  such as might enable a court reasonably to conclude that          Congress   implicitly   exempted  CERCLA   co-obligation  claims.          Although on  occasion  section 502(e)(1)(B)  may impede  CERCLA's          subsidiary policy of promoting equitable allocations of  environ-          __________          mental  cleanup costs  among  responsible  parties,  pre-"fixing"          disallowance  does not  conflict  with CERCLA's  primary goal                                                               _______          encouraging targeted PRPs to  initiate cleanup efforts as expedi-          tiously as  practicable in the expectation  that their contingent          claims may  become  "fixed" in  time  for allowance  against  the          debtor estate.   See In re Charter Co., 862  F.2d at 1504 (noting                           ___ _________________          obvious environmental  benefit from efforts  to "fix"  contingent          claims prior to  the closing  of the bankruptcy  case); see  also                                                                  ___  ____          supra note 7.          _____                    Accordingly, we  conclude that Congress did  not exempt          CERCLA claims from disallowance under section 502(e)(1)(B).               3.   Burdens of Proof in Section 502(e)(1)(B) Litigation.               3.   Burdens of Proof in Section 502(e)(1)(B) Litigation.                    ___________________________________________________                    In the  litigation of a  section 502(e)(1)(B) objection                                          18          to a contingent claim, however, the proper allocation of  burdens          of proof  and production may be decisive.  A proof of claim which          comports with  the requirements  of Bankruptcy Rule  3001(f) con-          stitutes prima facie evidence  of the validity and amount  of the                   _____ _____          claim.  See Fed. R.  Bankr. P. 3001(f).  The interposition  of an                  ___          objection does  not deprive  the proof  of  claim of  presumptive          validity unless  the objection  is supported by  substantial evi-                                                           ___________ ____          dence.  Norton Bankruptcy Law & Practice, Bankruptcy Rules at 191          _____   ________________________________  ________________          (1992); see also  In re Beverages  Int'l, Ltd., 50 B.R.  273, 276                  ___ ____  ____________________________          (D. Mass. 1985).   Once the trustee manages the initial burden of          producing substantial  evidence,  however, the  ultimate risk  of          nonpersuasion as  to the allowability  of the claim  resides with          the  party asserting the claim.  See Bankruptcy Rules, at 191-92;                                           ___ ________________          see also  In re VTN, Inc.,  69 B.R. 1005, 1006  (Bankr. S.D. Fla.          ___ ____  _______________          1987).  In the present case, therefore, the chapter 7 trustee was          required to come forward with substantial evidence that Juniper's          claim is one for CERCLA "contribution," which would implicate two          related questions:  (1) whether Hemingway-Bristol is contingently          "liable"  to the EPA for  future response costs,  and (2) whether          Juniper is "liable" to the EPA on the same "debt."               4.   Hemingway-Bristol "Liability" on Joint Obligation.               4.   Hemingway-Bristol "Liability" on Joint Obligation.                    _________________________________________________                    At  the time it  allowed Juniper's claim  for past res-                                                                  ____          ponse  costs,  the bankruptcy  court  determined  that Hemingway-          Bristol  had  owned or  operated  the facility  when  the passive          "disposal" of  hazardous substances occurred  and that Hemingway-                                          19          Bristol  had  actual knowledge  of  the presence  of  the leaking          barrels.  Hence, Hemingway-Bristol is a "covered person," strict-          ly  liable to the  EPA for future  response costs  pursuant to 42          U.S.C.   9607(a)(4)(A).                    Juniper  nonetheless  suggests  that  the  term "liable          with" should  be interpreted in light of the singular legislative          purpose  underlying the  section  502(e)(1)(B)  contingent  claim          disallowance provision.   Like any other  claim for contribution,          says Juniper,  its claim for  future CERCLA response  costs could          pose  no  "double-dipping"  threat  were the  EPA,  for  whatever          reason, not to participate in any distribution from the chapter 7          estate.   Moreover, the  EPA has elected  not to  assert a  claim          against the  estate, despite  considerable  prodding by  Juniper.          Rather, the EPA repeatedly has manifested its intention to forego          any  immediate claim  against the  chapter 7  estate in  favor of          administrative enforcement  actions against  other PRPs,  such as          Juniper.9   The  trustee responds  that  the literal  language of          section  502(e)(1)(B)  directs  disallowance  of  the  codebtor's          [Juniper's] contingent  claim even though the  creditor [EPA] has          not filed  a proof of claim  by the time the  codebtor's claim is          considered for allowance.                    Section 502(e)(1) directs disallowance  of the claim of          a  codebtor who  is liable  with the  debtor on  the "claim  of a                              ______  ____ ___  ______                                        ____________________               9In a May 1987 letter to  Juniper, the EPA suggested that it          had already exercised its discretion to refrain from asserting an          enforcement action against the  chapter 7 estate, at least  as of          that time.  Two years later, however, the EPA sent PRP notices to          Hemingway and Bristol.                                          20          creditor."   The pivotal terms     "claim" and  "creditor"    are          defined.  A "claim" is  a "right to payment, whether or  not such                                     _____          right is reduced  to judgment,  liquidated, unliquidated,  fixed,          contingent,  matured,  unmatured,  disputed,  undisputed,  legal,          equitable, secured, or unsecured."   Bankruptcy Code   101(4), 11          U.S.C.    101(4) (emphasis  added).   A "creditor" is  an "entity          that has a claim against the debtor that arose at the time  of or          before  the order for relief concerning the debtor."  Id.    101-                                                                ___          (9), 301 ("The commencement  of a voluntary case under  a chapter          of  this  title  constitutes  an  order  for  relief  under  such          chapter.").                    The EPA  presumably holds a  prepetition claim  against          the chapter  7 estate,  since its  contingent "right to  payment"          accrued while Bristol and Hemingway owned or operated the facili-          ty at which the  hazardous waste "disposal" occurred.   Cf. In re                                                                  ___ _____          Chateaugay, 944 F.2d  at 1002-06 (EPA  claim for CERCLA  response          __________          costs  is a prepetition claim if the contamination occurred prior          to the petition, without regard to when EPA discovered contamina-          tion, or incurred response costs).  Although section 502(e)(1)(B)          plainly does  not require that a   creditor's right to payment be          evidenced by a  timely proof  of claim, or  a previously  allowed          claim, see In re Wedtech Corp., 85 B.R. 285, 289 (Bankr. S.D.N.Y.                 ___ ___________________          1988), it is nonetheless incumbent on the trustee to produce sub-          stantial  evidence of the existence of a  right to payment on the          part of the creditor.                    The co-liability  clause  in section  502(e)(1),  viz.,                                                                      ___                                          21          "liable with the  debtor," interpreted in  light of its  singular          purpose, might permit allowance of a non-fixed codebtor claim for          CERCLA contribution if the creditor were foreclosed from partici-                                                   __________          pating in any  distribution from the estate under Bankruptcy Code            726(a).   Nevertheless, though we reject  the trustee's conten-          tion that  the EPA might yet demonstrate "excusable neglect" war-          ranting  an extension  of time  to file  a  proof of  claim,10 we          must  examine other means which  may remain open  to EPA's parti-          cipation in any chapter 7 distribution.                    The EPA may participate  in a distribution to unsecured          creditors under section 726(a)(2)(C) if it was never scheduled as          a "creditor" of the  estate, and had  no actual knowledge of  the          proceedings in time to  file a proof of claim.   See In re Global                                                           ___ ____________          Precious  Metals, Inc., 143  B.R. 204,  205-06 (Bankr.  N.D. Ill.          ______________________          1992) (chapter  7).11   Thus, a remote  "double-dipping" prospect                                        ____________________               10In a chapter 7 case, proofs of  claim must be filed within          ninety days  after the first  date set for  the first  meeting of          creditors.   Fed. R.  Bankr. P. 3002(c).  See In re  Chirillo, 84                                                    ___ _______________          B.R. 120,  122 (Bankr. N.D. Ill.  1988).  Since the  EPA could no          longer satisfy any  of the  six conditions for  extension of  the          ninety-day bar date set  forth in Bankruptcy Rule 3002(c),  it is          precluded from  asserting a  timely proof  of  claim against  the          chapter  7  estate.   See  Fed. R.  Bankr.  P. 9006(b)(1).   Rule                                ___          9006(b) plainly precludes resort  to Rule 9006(b)(1) to  extend a          time period prescribed in Rule 3002(c), except "to the extent and          under  the conditions stated in [Rule 3002(c)]."  Id. at 9006(b)-                                                            ___          (3).               11Bankruptcy  Code   726(a)(2)(C)  provides for  "payment of          any allowed  unsecured claim, other than a claim of a kind speci-          fied  in paragraph (1), (3), or (4)  of this subsection, proof of          which  is . . . tardily filed under section 501(a) of this title,          if (i) the creditor that holds such claim did not  have notice or          actual knowledge of the case in time for timely filing of a proof          of  such claim under section 501(a) of this title; and (ii) proof          of such claim is filed in time to permit payment  of such claim."                                          22          would remain  if Juniper's  claim were to  be allowed,  as it  is          conceivable that EPA might yet file an allowable claim.12                    In this case, however,  the harsh results occasioned by          Bankruptcy Code   502(e)(1)(B) are mitigable through  recourse to          Bankruptcy Code    501(c), which provides that,  "[i]f a creditor          does not timely file a proof of such creditor's claim, the debtor          or the trustee may file a proof of such claim."  See also Fed. R.                                                           ___ ____          Bankr.  P. 3004.   Although  section  501(c) is  permissive ("may          file"),  rather than  mandatory, and  is designed  principally to          prevent creditors  from depriving  debtors  of the  benefit of  a          discharge under Bankruptcy Code   727, 11 U.S.C.   727, cf. supra                                                                  ___ _____          note 8, in these circumstances there are sound reasons to require          the chapter 7 trustee  to shoulder the initial burden of filing a          surrogate claim in behalf of the EPA as a precondition to obtain-                                        ____________________          11 U.S.C.   726(a)(2)(C).  The appellate record does not disclose          whether EPA  was listed as a  creditor.  In addition,  it is con-          ceivable,  though  unlikely, that  EPA's  CERCLA  claim might  be          entitled to  share in any subordinate  distribution under section          726(a)(3),  as an  "allowed  unsecured claim  proof  of which  is          tardily filed," even if  EPA was scheduled, or had  actual notice          of the case prior to the bar date.  See In re Melenyzer, 140 B.R.                                              ___ _______________          143, 156 n.42 (Bankr. W.D. Tex. 1992) (chapter 7).               12Of  course,  the  bankruptcy  court  might  condition  its          allowance  of a codebtor's claim  on the ultimate  failure of the          creditor to file a proof of claim.  See Bankruptcy Code   502(j),                                              ___          11  U.S.C.   502(j) ("A claim that has been allowed or disallowed          may be  reconsidered for cause.").   Instead of  automatic disal-          lowance,  some courts  have suggested  that the  bankruptcy court          sharply  discount the  codebtor's  claim to  offset this  all-or-          nothing  contingency,  or direct  that  any  distribution to  the          codebtor be  placed in trust, to  be expended only to  reduce the          common debt.  See In re Allegheny Int'l., Inc., 126 B.R. 919, 924                        ___ ____________________________          (W.D. Pa. 1991),  aff'd, 950 F.2d  721 (3d Cir. 1991).   However,                            _____          these  options find little support in the categorical language of          section 502(e)(1)(B).                                          23          ing simultaneous disallowance of Juniper's contingent claim under          section 501(e)(1)(B).                    First, even if the chapter 7 trustee were to decline to          act  as an EPA surrogate, Juniper could force the trustee's hand.          Under a parallel Code provision, Juniper itself  would be permit-          ted to file  a surrogate claim for the EPA.   See Bankruptcy Code                                                        ___            501(b),  11  U.S.C.   501(b)  ("If  a creditor  [EPA]  does not          timely file a proof of such creditor's claim, an entity [Juniper]          that is liable to such creditor  with the debtor . . . may file a          proof of such  claim.").13  Were it  to resort to  the surrogate-          claim procedure,  Juniper would be  required to show  simply that                                        ____________________               13The equitable considerations underlying the section 501(b)          surrogate-claim procedure have been described as follows:               Section  501(b) and  Rule  3005  protect  the  codebtor               against the  danger that  the creditor, faced  with the               bankruptcy of the prime debtor, might decide to rely on               the solvency of the  codebtor and therefore, to abstain               from filing  a proof of claim.   In such a  case, while               there might be a prospect of securing at  least partial               satisfaction from the assets  of the debtor, the credi-               tor would  forego this  possibility and merely  proceed               with his claim against  the codebtor.  By the  time the               creditor decided to take  such action, any period fixed               for the  filing of claims might have  elapsed.  Indeed,               the debtor's estate might  have been fully administered               by  the trustee  so  that the  codebtor  would be  left               without the possibility  of even partial  reimbursement               to the extent he  has satisfied the claim of  the debt-               or's creditor.  The debtor's discharge would remove the               possibility  that  his codebtor  could  secure indemni-               fication  from him  at  some future  time. . . .  [T]he               unwillingness of  th[e] creditor to take  the necessary               steps in  the administration  of  bankruptcy to  insure               . . .  participation [in  distribution of  the debtor's               assets] would not  deny the ability of  the codebtor to               do so.          See  Lawrence D. King, Collier  on Bankruptcy    509.02, at 509-6          ___                    ______________________          (15th ed. 1991) [hereinafter Collier on Bankruptcy].                                       _____________________                                          24          "the  original  debt  [due  EPA by  Hemingway-Bristol  would]  be          diminished  by the amount of the distribution  [to the EPA on the          surrogate claim]."  Fed. R.  Bankr. P. 3005(a).  Of course,  even          this  modest burden would be obviated if the surrogate claim were          to be superseded by the  EPA's filing of its own proof  of claim.          See id. 14          ___ ___                    More  importantly,  mandatory resort  to  the trustee's          option  to file a surrogate  proof of claim  under section 501(c)          more  readily comports with the allocation of the burden of proof          under section  502(e)(1)(B), which  would require the  trustee to          come  forward with  substantial support  for the  section 502(e)-                              ___________          (1)(B) objection to Juniper's proof of claim, and hence, substan-          tial evidence  that Hemingway  and Bristol  were "liable" to  the          EPA.   See supra  Section II.A.3.   In addition,  the trustee has                 ___ _____          title and  ready access to  the debtors' records,  see Bankruptcy                                                             ___          Code    521(4), 11 U.S.C.   521(4) ("[D]ebtor shall . . . surren-          der to  trustee  all property  of  the estate,  including  books,          documents, records, and papers . . . ."); In re Bentley, 120 B.R.                                                    _____________                                        ____________________               14Although  the EPA can no  longer file a  "timely" proof of          claim now  that the bar date  has passed, see supra  note 10, its                                                    ___ _____          forbearance triggers the trustee's and Juniper's rights to file a          proof of claim  in EPA's behalf.  Under Bankruptcy Rules 3004 and          3005(a),  the trustee and Juniper normally would have only thirty          days  from  the bar  date to  file their  surrogate claims.   But          insofar as  EPA "did not  have notice or actual  knowledge of the          case in  time  for timely  filing  of a  proof  of . . .  claim,"          Bankruptcy  Code   726(a)(2)(C)(i),  see also  supra note  11 and                                               ___ ____  _____          accompanying text, the EPA  can yet file a belated claim that can          receive payment along with  other timely-filed unsecured  claims,          so long  as "proof  of  such claim  is filed  in  time to  permit          payment  of such  claim."   Id.    726(a)(2)(C)(ii).   Thus,  the                                      ___          trustee and Juniper,  as EPA surrogates, can avail  themselves of          the section 726(a)(2)(C) "extended filing" provision.                                          25          712, 714 (S.D.N.Y. 1990),  and the right to require  the debtors'          officers to submit to examination,  see Bankruptcy Code   521(3),                                              ___          11  U.S.C.   521(3)  ("[D]ebtor shall  . .  . cooperate  with the          trustee  as necessary to enable the trustee to perform the trust-          ee's  duties .  . . ."); Fed.  R. Bankr. P.  4002(4) (Debtor must          "cooperate with the trustee in . . . the examination of proofs of          claim . . . .");  In re Neese, 137 B.R. 797, 801 (C.D. Cal. 1992)                            ___________          ("'[C]ooperate'  is a broad term . . . .").  Thus, the trustee is          in  a far  better position  than Juniper  to ferret  out evidence          relevant to the EPA's claim against the debtors.                    Although  disallowance of Juniper's  CERCLA claim under          section 502(e)(1)(B) is not  strictly foreclosed by EPA's failure          to file timely proof  of its claim, we  cannot overlook the  fact          that the trustee's reliance  on section 502(e)(1)(B) may occasion          a pointless financial loss to Juniper and result in a windfall to          the chapter  7 estate, notwithstanding Juniper's  best efforts to          induce EPA to file its claim.  In  this vein, we note that resort          to subsections 501(b)  and (c) would not  compel EPA's participa-          tion in the bankruptcy proceedings, cf. In re Hemingway  Transp.,                                              ___ ________________________          70 B.R.  549 (Bankr. D.  Mass. 1987) (finding  sovereign immunity          would preclude mandatory joinder of EPA as party); cf. also infra                                   _______                   ___ ____ _____          note  26, but  nevertheless would  compel a  set-aside  for EPA's          benefit at the time of distribution regardless of its decision to          refrain from filing a  claim against the chapter  7 estate.   The          distribution  to EPA  would result  in a  reduction in  the total          indebtedness  to EPA for which  Juniper and the  chapter 7 estate                                          26          are  alleged to be  co-liable.  In  our view, the  EPA's recalci-          trance,  whatever its  administrative justification,  provides no          relevant  legal or  equitable  basis for  barring  resort to  the          alternative  surrogate-claim  filing  procedure authorized  under          subsections 501(b) and (c).                    Accordingly,  we  vacate  the  bankruptcy  court  order          disallowing  Juniper's claim  under  section  502(e)(1)(B).    On          remand, the  bankruptcy court  should prescribe a  reasonable bar          date by which the chapter 7  trustee must elect whether to file a          surrogate EPA claim pursuant to Bankruptcy Code   501(c), without          prejudice to  Juniper's right to  submit a surrogate  claim under          subsection  502(b)  as well.15   Should  the  trustee not  file a          timely surrogate  claim  (and  should Juniper  not  do  so),  the          section 502(e)(1)(B) objection should be dismissed, and the court          should  estimate Juniper's  direct  claim against  the chapter  7          estate  pursuant  to  normal  claim-allowance  procedures.    See                                                                        ___          Bankruptcy Code   502(c).                                        ____________________               15Unlike a creditor filing  in its own behalf, or  a trustee          seeking to  avail the debtor of  the full benefit of  a chapter 7          discharge, in this  case the  chapter 7 trustee  may have  little          incentive  to maximize any surrogate claim in behalf of EPA, thus          depleting  any  pro-rata  dividend available  to  other unsecured          creditors.   A similar problem may arise if any superseding proof          of claim filed by EPA were to  understate (in Juniper's view) the          chapter 7  debtors' share of  the CERCLA obligation.   We  do not          construe  subsections  501(b)  and  (c) as  suggesting  that  the          trustee could  preempt a  surrogate  EPA claim  by Juniper  under          section  501(b)  asserting that  the  chapter  7 estate's  CERCLA          liability to EPA is  greater than that asserted in  the trustee's          section  501(c) surrogate  claim.   Rather, the  bankruptcy court          should  entertain evidence from the trustee  and Juniper, for the          purpose  of estimating the value  of the EPA  claim under section          502(c).                                          27               5.   Juniper's "Liability" on Joint Obligation.               5.   Juniper's "Liability" on Joint Obligation.                    _________________________________________                    In the event the trustee  should file a surrogate claim          in behalf of the EPA pursuant to sections 501(c) and 726(a)(2)(C)          following  remand, we  outline the  standards governing  its con-          sideration by the bankruptcy court.                    Juniper's "contribution" claim differs in one important          respect from codebtor claims  normally subjected to  disallowance          under section 502(e)(1)(B).  In the typical contractual relation-          ship  between  a  principal  and its  surety  or  guarantor,  the          codebtor's  (surety's  or guarantor's)  obligation on  the common          debt  arises at  the same  time as  the creditor's  (principal's)          "right  to payment"  from  the debtor     during  the prepetition                                                    ______  ___ ___________          period     which necessarily means that both the creditor and the          ______          codebtor  hold prepetition  claims  against  the  debtor  estate.                         ___________          Here, on the other hand, regardless whether the EPA has a prepet-          ition or a postpetition claim, Juniper's  "right to payment" from          Hemingway-Bristol arose,  at the earliest, when  it purchased the                                    __ ___ ________          facility from  the Hemingway-Bristol  chapter 11 estate  in April          1983.   Only then did Juniper  become an "owner and  operator" of          the contaminated  facility, hence a "covered  person" under CERC-          LA.16   Since  Juniper undeniably  holds a  postpetition "claim,"                                                      ____________          Bankruptcy  Code    101(9),  301, 11  U.S.C.    101(9),  301, its                                        ____________________               16The  bankruptcy court implicitly acknowledged as much when          it  approved Juniper's  request  for past  response  costs as  an                                               ____          administrative expense:  "Juniper's  cause of action under CERCLA          arose when the property  containing the drums was  transferred to          Juniper  or, alternatively,  when Juniper  expended money  in re-          sponse to  the  EPA's administrative  order."   In  re  Hemingway                                                          _________________          Transp., 73 B.R. at 503.          _______                                          28          "proof of claim" under Bankruptcy Code    501 and 502 is no  less          readily     and presumably even more  accurately    characterized          as "a  request for payment  of an  administrative expense"  under          Bankruptcy  Code    503(a).   See  Bankruptcy  Code   348(d),  11                                        ___          U.S.C.   348(d)  (providing that claims arising  after the filing          of a chapter 11 petition and before conversion to chapter 7 shall          be treated as prepetition claims, unless  they qualify as "admin-          istrative expenses" under section 503(b)).17                                        ____________________               17Courts  have  long  recognized  a  category  of  allowable          administrative expenses resulting  in no  discernible benefit  to          the  debtor estate, see In re Charlesbank Laundry, Inc., 755 F.2d                              ___ _______________________________          200  (1st Cir.  1985),  in instances  where fundamental  fairness          required that  the claimant's  right to distribution  take prece-          dence over the  rights of general creditors.   See Reading Co. v.                                                         ___ ___________          Brown,  391 U.S. 471 (1968).  In Reading, several business firms,          _____                            _______          whose premises were damaged  by a fire negligently caused  by the          receiver appointed  to operate  a Chapter XI  business, requested          that their fire-loss claims be allowed as administrative expenses          of  the  Chapter XI  estate,  notwithstanding the  fact  that the          losses sustained as a result of the fire resulted in no "benefit"          to  the  Chapter XI  estate.    Noting the  "decisive,  statutory          objective [of] fairness to all persons  having claims against the          insolvent," Reading, 391 U.S. at 477, the Supreme Court held that                      _______          the  claims for postpetition fire loss were allowable as costs of          administration.  Its  rationale was equitable  in nature:   unse-          cured creditors  in a  Chapter XI reorganization  anticipate that          their agreement to defer receipt of payment  on their prepetition          claims   may  facilitate  the  reorganization  debtor's  ultimate          rehabilitation, thereby enhancing their prospects for recovery on          their prepetition claims.   Unlike holders of prepetition claims,          however, the firms  whose business premises  were damaged by  the          postpetition  fire negligently  caused by  the receiver  had "the          insolvent business [involuntarily] thrust upon them  by operation          of law."  Id.  Similarly, in  Charlesbank, we extended Reading to                    ___                 ___________              _______          postpetition fines imposed on a  chapter 11 estate for deliberate          disregard of an injunction. See Charlesbank, 755 F.2d at 203.                                      ___ ___________               In citing Reading and Charlesbank as support for its  provi-                         _______     ___________          sional decision granting Juniper administrative  priority for its          postpetition  contribution claims,  the bankruptcy  court focused          entirely on  the debtors'  failure to disclose  the environmental                           _______          risk  prior to the 1983  sale, and the  perceived "unfairness" in          the "debtor attempting to transfer its liability or potential for          liability  under state  or federal  environmental laws"  in those                                          29                    Bankruptcy  Code    503(a)(1)(A) enables  an  entity to          file a request for payment  of an administrative expense, includ-          ing  "the actual, necessary costs and  expenses of preserving the          estate."   "As a general rule, a request for  priority payment of          an administrative  expense pursuant to  Bankruptcy Code    503(a)          may qualify if (1) the right to payment arose from a postpetition          transaction with the  debtor estate, rather  than from a  prepet-          ition  transaction with  the  debtor, and  (2) the  consideration          supporting the right to  payment was beneficial to the  estate of          the  debtor."  In re Hemingway Transp.,  Inc., 954 F.2d 1, 5 (1st                         ______________________________          Cir. 1991) (citing  In re Mammoth Mart,  Inc., 536 F.2d 950,  954                              _________________________          (1st Cir. 1976)).  The trustee argues that administrative expense          priority  under Mammoth Mart is  wholly unavailable to Juniper on                          ____________          its claims for past and future response costs, as Juniper's right          to  contribution from the chapter  7 estate was  not supported by          consideration (i.e.,  Juniper's outlay  of response  costs) which                         ____          could  "benefit" the estate.   Thus, the trustee  points out that          the contaminated facility  was no longer property  of the chapter                                        ____________________          circumstances. See In re Hemingway Transp., 73 B.R. at 504.  Thus                         ___ _______________________          interpreted, Reading  might permit Juniper to  recover the entire                       _______          cost of  its extant "injury"     or the past and  future costs of          remediation    despite the fact that  it has yet to incur some of          these  response costs.  Unlike the injured parties in Reading and                                                                _______          Charlesbank, however, Juniper dealt  voluntarily on a contractual          ___________                          ___________          basis  with the chapter 11  estate.  No  principle of fundamental          fairness would  entitle Juniper  to administrative  priority over          other unsecured  creditors of the Hemingway-Bristol  estate if it          failed to  exercise due  diligence in  all  the circumstances  to          protect itself, from the outset, against any imposition of CERCLA          joint  and several liability.  In addition, lack of due diligence          would, for reasons explained below at pp. 36-38,  prevent Juniper          from escaping  the strictures of  section 502(e)(1)(B)'s "fixing"          requirement.                                          30          11 estate, hence Juniper's incurrence of response costs would not          bring the estate  into compliance with federal  or state environ-          mental regulations.  Cf. In re  Stevens, 68 B.R. 774, 783 (D. Me.                               ___ ______________          1987)  (finding  that  the  State's claim  for  cleanup  expenses          incurred in substitute fulfillment of the trustee's legal obliga-          tion was  entitled to administrative expense  priority, where the          trustee, who would  be prohibited  from exercising  his power  of          abandonment  in contravention  of state  environmental protection          laws, was still  in "possession" of property  posing an "imminent          and identifiable danger" to public health and safety; contrasting          case in  which trustee had  already been "dispossessed"  of waste          site at  time of government-financed  cleanup); In  re T.P.  Long                                                          _________________          Chem., Inc., 45 B.R.  278, 284-85 (Bankr. N.D.  Ohio 1985).   Nor          ___________          could the CERCLA response costs incurred by Juniper "benefit" the          chapter 11 estate while the estate remained jointly and severally          liable on the EPA debt.   Although we agree that Juniper's incur-          rence of CERCLA response  costs might not benefit the  estate, on                          ________  _____          the facts of this case we cannot agree that Mammoth Mart priority                                                      ____________          is altogether unavailable to Juniper.                    In  the  context  of  their  arm's-length purchase-sale          transaction in 1983, we must presume that Juniper and the chapter          11  estate were cognizant of  the federal and state environmental          laws then in effect,  and that, notwithstanding Juniper's result-          ing  status as an "owner or operator" of the contaminated facili-          ty,  the chapter 11 estate  could remain liable  for any response          costs later incurred by Juniper and for which the debtors (or the                                          31          debtor  estate)  were liable  under  CERCLA  section 9607(a),  an          obligation explicitly  provided for  presently in 42  U.S.C.    -          9607(a)(4)(B) and 9613(f).   See O'Neil, 883 F.2d at  179 (noting                                       ___ ______          that  SARA contribution provisions  merely "codif[ied] [a remedy]          that  most courts had concluded  was implicit in  the 1980 Act");          Marden Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454,  1457 n.3 (9th          ____________    __________________          Cir.  1986) (collecting  pre-SARA  caselaw  recognizing  implicit          right  of contribution in CERCLA).   There is  no record evidence          that the  estate either  contracted away  its obligation  to con-          tribute, or  bargained for a right to  indemnification from Juni-          per.   See  42 U.S.C.    9607(e) (purported  transfers of  CERCLA                 ___          liability cannot exonerate transferor, but indemnification agree-          ments are permissible).   Similarly, to the extent that  the $1.6          million purchase price for  the facility presumptively  reflected          the parties'  allocation of the risks relating to these contribu-          tion costs, the $1.6 million constituted "consideration" support-          ing  Juniper's right  to  payment for  contribution for  response          costs from the  estate.  Obviously, this  substantial infusion of          cash benefitted the chapter 11 rehabilitation effort.  Thus,  the          $1.6 million  in purchase monies constituted  the requisite base-          line  "consideration" for  Juniper's right  to  contribution; and          response costs subsequently incurred by Juniper a mere maturation          of that right, immaterial for Mammoth Mart purposes.                                         ____________                    On the  other hand, we agree that Mammoth Mart priority                                                      ____________          is unavailing to Juniper insofar as its right to contribution for          future  response costs remains "contingent" at the time the bank-                                          32          ruptcy court considers Juniper's  claim for allowance against the          debtor  estate.    Only  "actual"  administrative  expenses,  not          contingent  expenses,  are  entitled  to priority  payment  under          Bankruptcy Code    503(b)(1)(A).   Even  though  Juniper's  post-          petition contribution  claim, once allowed, would  be entitled to                                        ____ _______          priority  treatment under  section 503(b), the  parallel restric-          tions in section 502(e)(1)(B)  pose an additional hurdle.   Under          its clear terms, section  502(e)(1)(B) does not apply exclusively          to  "creditors," or  in other  words, to  holders of  prepetition                                                                ___________          claims for reimbursement  or contribution.  Section  502(e)(1)(B)          refers  to  the holder  of the  claim as  an  "entity," not  as a          "creditor"  of the  estate.18   Accordingly,  Juniper's  priority          "claim for  reimbursement or contribution" would  be allowable if          either:  (1) Juniper and the chapter 11  estate are not strictly,          ______          jointly, and severally liable  ("liable with the debtor") on  the          EPA debt under the liability provisions of the CERCLA statute, or                                                                         __          (2)  Juniper's response  costs have  become "fixed"  and "actual"          (i.e., have been expended by Juniper for remediation or paid over           ____          to the EPA) by the time  Juniper's claim is considered for disal-          lowance.  As Juniper's contingent claim for future response costs          is, by definition, not "fixed," Juniper cannot escape  the conse-          quences of  section 502(e)(1)(B)  unless it  is not strictly  and          jointly  "liable" with Hemingway-Bristol  on the  EPA debt.   Cf.                                                                        ___          infra Section II.C.  (Mammoth Mart administrative expense priori-          _____                 ____________                                        ____________________               18"Creditor" means an "entity that has a claim that arose at          the  time of  or before  the order of  relief."   Bankruptcy Code            101(9), 11 U.S.C.   101(9).                                          33          ty would  attach to  Juniper's  "fixed" claim  for past  response                                                             ____          costs).  We turn, therefore, to the question of Juniper's alleged          liability to the EPA.                    The threshold  question is whether Juniper  is even as-          serting  a direct CERCLA claim  against the chapter  7 estate, or                     ______          merely a derivative claim  for "contribution" from the chapter  7                   __________          estate.  CERCLA section 9613(f) is the sole statutory basis for a          right  to "contribution," see supra note 5 and accompanying text,                                    ___ _____          but CERCLA prescribes other remedial  provisions as well.  Unlike          section 9613(f), a  private right of  action for CERCLA  response          costs under  section 9607(a)(4)(B)  is available to  "any person"                                                                ___ ______          who incurs necessary response costs, presumably without regard to          whether  the plaintiff is an EPA target,  i.e., a PRP or "covered                                                    ____          person" under section 9607(a).   See 42 U.S.C.   9601(21)  ("per-                                           ___          son"  includes  "corporation").    Section  9607(a)(4)(B)  simply          requires the private-action plaintiff to prove that (1) a release          of a  "hazardous substance" from the  subject "facility" occurred          or  is threatened;  (2) the  defendant comes  within any  of four          categories of "covered persons,"  which include current owners or          operators of the facility, see 42 U.S.C.   9601(9)(B), as well as                                     ___          the owners  and operators  of the facility  at the time  the con-          tamination occurred;  (3) the  release or threatened  release has          caused  (or may cause)  the claimant  to incur  response costs;19                                        ____________________               19"Response  costs,"  42  U.S.C.    9601(25),  include costs          incurred in "removal" actions, which address immediate threats to          public  health  and safety  caused  by  hazardous substances,  42          U.S.C.    9601(23), and  costs  incurred in  "remedial"  actions,          directed at long-term or  permanent remediation of the contamina-                                          34          and (4)  the response costs are "necessary"  and "consistent with          the  national contingency plan."  See Dedham Water Co. v. Cumber-                                            ___ ________________    _______          land Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989).20          ______________________                    For instance, a neighboring landowner, who is neither a                                    ___________          current  nor a past owner or operator of the contaminated facili-          ty, hence not strictly liable as a "covered person" under section          9607(a), may incur  response costs  as a result  of a  threatened          release and  potential migration of hazardous  substances from an          adjoining  property,  and may  assert  a  right of  action  under          section 9607(a)(4)(B).   See,  e.g.,  Dedham Water,  889 F.2d  at                                   ___   ____   ____________          1146-48 (noting  that water  utility would  have cause  of action          under  section 9607(a)(4)(B)  against neighboring  property owner          for response costs relating to threatened release).  On the other          hand, in the event the private-action plaintiff  itself is poten-          tially "liable" to the  EPA for response costs, and  thus is akin          to a joint "tortfeasor," section 9607(a)(4)(B) serves as the pre-                                                                       ____                                        ____________________          tion, 42 U.S.C.   9601(24).               20Section 9607(a) provides, in pertinent part:               (1)  [T]he owner  and operator of a vessel or a facili-               ty,               (2)  [A]ny person who  at the time  of disposal of  any                    hazardous substance owned or operated any facility                    at  which such hazardous  substances were disposed                    of . . . shall be liable for                       (A)  all costs of removal or  remedial action                         incurred by the United States Government                         or a State . . .                    (B)  any  other  necessary costs  of response                                     _________ _____  __ ________                         incurred by any other  person consistent                                     ___ _____  ______                         with the national contingency plan.          42 U.S.C.   9607(a)(2)(B) (emphasis added).                                          35          enforcement analog to the "impleader" contribution action permit-          ___________          ted  under section 9613(f).  See 42 U.S.C.   9613(f) ("Nothing in                                       ___          this subsection shall diminish  the right of any person  to bring          an action for contribution in the absence of a civil action under          section [9606] or section [9607].");  see also Wickland Oil  Ter-                                                ___ ____ __________________          minals  v. Asarco,  Inc., 792  F.2d 887,  890-91 (9th  Cir. 1986)          ______     _____________          (holding  that section  9607(a)(4)(B)  grants  private  right  of          action  for  response costs,  without  regard  to  any prior  EPA          enforcement actions).                    Because  Juniper's initial  complaint  in  the  instant          adversary  proceeding invoked  generic claims  for "contribution"          and  "indemnification,"  without  attribution  to  any  statutory          source, the bankruptcy  court specifically requested  Juniper "to          amend Count I [of its complaint] to include the statutory prereq-          uisite [sic] of 42 U.S.C.   9607(a)(4)(B)."  Although the amended          complaint represents  at best  an imperceptible  improvement over          its predecessor, the  bankruptcy court  apparently considered  it          adequate to assert  such a claim.21   Juniper's amended complaint          bears  this out.  It alleges that  (1) Juniper is a current owner          of  the facility,  but not that  it is  a "covered  person" under          section 9607(a); (2) Hemingway and Bristol fraudulently concealed          the presence of  hazardous wastes  at the facility  prior to  the          1983 sale; and (3) Juniper neither knew nor had "reason to  know"                                        ____________________               21The bankruptcy court opinion  states:  "In the  context of          this case, it is possible to view Juniper as a direct creditor of          Hemingway and as an  entity jointly liable with the  Debtor."  In                                                                         __          re Hemingway Transp., 105 B.R. at 175.          ____________________                                          36          of the contamination until 1985.                    The  bankruptcy court  concluded that  Juniper, as  the          current "owner" of the facility, undoubtedly would be "liable" to          the  EPA in an enforcement  action simply by  virtue of its prima                                                                      _____          facie  status  as  a  "covered  person"  under section 9607(a).22          _____          The undefined  term "liable" is  common to both  CERCLA   9607(a)          and Bankruptcy Code   502(e)(1)(B).   Its construction presents a          question of law subject to  plenary review.  See In re  Erin Food                                                       ___ ________________          Servs., Inc., 980  F.2d 792, 794  (1st Cir. 1992)  (citing In  re          ____________                                               ______          LaRoche, 969 F.2d 1299, 1301 (1st Cir. 1992)).          _______                    Of  course,  not  all  "covered  persons" are  strictly          liable  for  response costs.   The  harsh  effects of  the strict          liability  rule  are  subject  to mitigation  through  resort  to          certain affirmative defenses.  Section 9607(b) expressly provides          that "[t]here shall be no liability under section [9607](a) . . .                                 __ _________          for a person otherwise  liable who can establish by  a preponder-                                        ____________________               22The bankruptcy court based  its section 502(e)(1)(B)  dis-          allowance  on the ground that Juniper had denominated its claim a          derivative claim  for "contribution,"  thereby conceding  its co-          liability with  the Hemingway-Bristol estate  for future response          costs.  In our view, this ruling exalts  form over substance, and          ignores both  the liberality  with which  pleadings must  be con-          strued and the  right to plead  alternative or seemingly  "incon-          sistent" claims.   See Fed.  R. Bankr. P.  7008(a) (incorporating                             ___          Fed. R. Civ. P. 8(e), providing that "[a] party may set forth two          or more statements of  a claim or defense alternatively  or hypo-                                                    _____________          thetically  . . . regardless  of consistency  . . . .") (emphasis                            __________  __ ___________          added); cf. also Schott Motorcycle Supply, Inc. v. American Honda                  ___ ____ ______________________________    ______________          Motor Co., 976 F.2d 58, 61-62 (1st Cir. 1992).  Given the compar-          _________          ative breadth of the  section 9607(a)(4)(B) remedy, and Juniper's          explicit allegation that it had  no actual or constructive knowl-          edge  of the contamination at the time it purchased the facility,          we think the trustee must come forward with  substantial evidence          from  which the bankruptcy court could conclude that Juniper is a          "covered person" liable to the EPA for future response costs.                                          37          ance  of the evidence [the following defenses] . . . ."  See also                                                                   ___ ____          Environmental  Transp. Sys. v. Ensco, Inc., 969 F.2d 503, 504 n.3          ___________________________    ___________          (7th  Cir. 1992).    Section 9607(b)(3)  would afford  a complete          defense to CERCLA liability if Juniper were to establish that (1)          it acquired the facility after the initial deposit of the hazard-          ous substances;  (2) at the  time of its acquisition,  it did not          know and had "no reason to know" that any hazardous substance was                        __ ______ __ ____          deposited  at  the facility;  and (3)  once  the presence  of the          hazardous substance  became known, Juniper exercised  due care in          the  circumstances.  The statute  defines the term  "no reason to          know" as follows:                    [T]he  [buyer] must  have undertaken,  at the                    time of acquisition, all  appropriate inquiry                                         ___  ___________ _______                    into the previous  ownership and uses of  the                    property consistent with  good commercial  or                    customary practice in  an effort to  minimize                                       __  __ ______ __  ________                    liability.   For  purposes  of the  preceding                    _________                    sentence  the court  shall take  into account                    any  specialized  knowledge or  experience on                    the  part of the [buyer], the relationship of                                              ___ ____________ __                    the purchase price to  the value of the prop-                    ___ ________ _____ __  ___ _____ __ ___ _____                    erty  if  uncontaminated,  commonly known  or                    ____  __  ______________   ________ _____  __                    reasonably  ascertainable  information  about                    __________  _____________  ___________                    the property, the obviousness of the presence                                  ___ ___________ __ ___ ________                    or  likely presence  of contamination  at the                    __  ______ ________  __ _____________                    property,  and  the  ability to  detect  such                    contamination by appropriate inspection.          42 U.S.C.   9601(35)(B) (emphasis  added); see also United States                                                     ___ ____ _____________          v. Pacific  Hide & Fur Depot,  Inc., 716 F. Supp.  1341, 1347 (D.             ________________________________          Idaho  1989);  cf. 42  U.S.C.    9622(g)  (de minimis  settlement                         ___                         __ _______          provisions  not  applicable to  owners  who  purchased land  with          actual  or  constructive  knowledge  of contamination).    As  an          acquiring party and an owner of  the facility during a period  of                                          38          "passive"  disposal,23 Juniper  would  be held  to an  especially          stringent level of  preacquisition inquiry    on  the theory that          an acquiring party's failure to make adequate inquiry  may itself          contribute to a prolongation of the contamination.24                    Thus,  under  either  section  501(e)(1)(B)  or section                                  ______                         __          503(a),  Juniper's  participation in  any  distribution from  the          chapter 7 estate hinges entirely on the validity of its "innocent          landowner" defense.  Notwithstanding its relevance, the "innocent          landowner" defense  was never explicitly considered  by the bank-          ruptcy court in connection with the trustee's motion for  summary          judgment  disallowing Juniper's CERCLA  claim pursuant to section          502(e)(1)(B),  nor in  connection  with its  earlier  provisional          ruling on Juniper's entitlement  to administrative priority.  Cf.                                                                        ___          supra note 17.  The  record contains mixed signals on the  "inno-          _____          cent  landowner" defense.  In  a May 19, 1987  letter to Juniper,          the EPA opined  that Juniper would not be entitled  to the "inno-                                        ____________________               23The parties  do not challenge the  bankruptcy court ruling          that the  Hemingway-Bristol estate is "liable"  for the "passive"          disposal at the facility (i.e., the leaking  of previously gener-                                    ____          ated  or deposited  containers of  hazardous waste),  even absent          evidence that  the chapter 7 estate contributed to the generation          or the deposit of the hazardous substances in the first instance.          Furthermore, the chapter 7  estate could not establish  an "inno-          cent owner" defense:   the 1982 DEQE notice afforded  the debtors          actual knowledge that  drums of contaminants were located  at the          ______          facility.  On  the other  hand, the bankruptcy  court found  that          "none of  the interested parties, including  the Trustee, Juniper          and the two  courts that approved the sale,  were apprised of the          presence of hazardous  wastes on the  property, despite the  DEQE          action."  In re Hemingway Transp., 73 B.R. at 501-02.                    _____ _________________               24The  EPA  informed Juniper  in May  1987 that  its alleged          contribution to the passive disposal was undetermined because the          extent of the  post-1983 "contaminant plume" at the  facility had          yet to be ascertained.                                          39          cent landowner"  defense, for several reasons:   Juniper (1) knew          in 1983  that the facility was in close proximity (200 feet) to a          larger Superfund  site already included on  the national priority          list;  (2) made no preacquisition inquiry of EPA or DEQE concern-          ing  possible contamination in the  area; and (3)  did not obtain          available maps  showing an unpaved  access road to  the allegedly          inaccessible portion of the facility where the drums were found.                    The EPA  opinion is  not necessarily dispositive  as to          the allowability of a claim or an administrative expense request.          Nevertheless, after  trial on the issue  of Hemingway's liability          for  past response  costs, the  bankruptcy court  noted (notwith-          standing  Juniper's contention that the drums  were located in an          area which was inaccessible  at the time of  the 1983 sale)  that          "easy access to the location of the barrels is possible along the           ____ ______          City  of  Woburn's  sewer  easement,  which  parallels  the  MBTA          tracks."  In  re Hemingway  Transp.,  108 B.R.  at  380 (emphasis                    ______ __________________          added).  The record further suggests that Juniper, an experienced          land  developer in the Woburn  area, may have  been familiar with          the environmental risks posed by its acquisition of the facility,          and  therefore may  have  been cognizant  that  the $1.6  million          purchase price  reflected a discount  due to contamination.   Cf.                                                                        ___          Smith Land & Improvement Corp. v. Celotex  Corp., 851 F.2d 86, 90          ______________________________    ______________          (3d Cir.  1988) (in allocating responsibility  between vendor and          purchaser, court may consider any implicit discount in sale price          as reflecting assumption of risk of contamination).                    On  the  other  hand,  the record  indicates  that  the                                          40          bankruptcy court may have considered Juniper's responsibility for          any contamination extremely minimal,  especially in comparison to          Hemingway-Bristol.  For example, in  allowing Juniper's contribu-          tion  claims for past response  costs, the bankruptcy court allo-                           ____          cated  total financial  responsibility to  Hemingway-Bristol, see                 _____                                                  ___          supra  note 4,  despite  the fact  that the  court also  found no          _____          evidence that Hemingway-Bristol,  throughout twenty years'  occu-          pancy,  ever  generated  or  deposited hazardous  wastes  at  the          facility.   The bankruptcy court  further found that  Juniper was          never "apprised  of the presence of hazardous  wastes. . . ."  In                                                                         __          re Hemingway Transp., 73  B.R. at 501.  And, of  course, discount          ____________________          prices are not  uncommon in forced sales of  the assets of insol-          vent estates.                    Since the bankruptcy court's disallowance  of Juniper's          claim must be vacated  on independent grounds, see supra  Section                                                         ___ _____          II.A.4, on  remand the  trustee will  have the  burden to  file a          surrogate  claim in  behalf  of the  EPA and  the burden  to come                                                   ___          forward with substantial evidence that Juniper is not entitled to          an "innocent landowner" defense.  The ultimate burden of proof on          that defense, however, will remain  with Juniper.  The bankruptcy          court  should determine  whether Juniper  made  "all appropriate"          preacquisition  inquiry  pursuant  to  42  U.S.C.    9601(35),  a          factual finding  which  would be  subject to  clear error  review          only.  Should the bankruptcy court find that Juniper did not have          notice  or actual knowledge of  the contamination at  the time it          purchased  the facility  in 1983,  Juniper's  claim for  past and                                          41          future  response  costs  should  be estimated25  and  allowed  as          administrative  expenses entitled  to priority.26   On  the other          hand,  if Juniper did not  take all appropriate  steps to protect          itself from CERCLA liability, its lack of diligence exposed it to          the  harsh consequences  of strict,  joint and  several liability                                        ____________________               25Because of  its earlier  section 502(e) disallowance,  the          bankruptcy court refused to  permit Juniper to introduce evidence          of anticipated future cleanup costs.  Although we need not decide          the issue at  this juncture,  we note that  the EPA's  nonbinding          preliminary  allocation  of  responsibility may  be  inadmissible          evidence as to the  value of Juniper's claim for  future response          costs, see 42 U.S.C.   9622(e)(3)(C) ("The nonbinding preliminary                 ___          allocation of responsibility shall  not be admissible as evidence          in  any proceeding  . . .  [nor] constitute  an apportionment  or          other statement on the divisibility of harm or causation."), and,          on remand, that  it may be incumbent on  Juniper to present other          evidence of the extent of its "injury."               26The determination of  Juniper's CERCLA "liability" by  the          bankruptcy court is required solely for purposes of the allowance          or disallowance of Juniper's proof of claim, a core proceeding in          bankruptcy, and  the court cannot ignore the possibility that the          EPA might  yet maintain  a successful enforcement  action against          Juniper.   But  unlike  the holder  of  a prepetition  claim  for                                                    ___________          contribution,  which normally must await final distribution under          Bankruptcy Code    726, Juniper would enjoy  a distinct distribu-          tional advantage  should it succeed in  establishing its entitle-          ment  to the  "innocent  landowner" defense  under section  9607-          (b)(3).  The court properly could provide for the immediate, pre-                                                            _________          distribution payment of Juniper's "claim" in trust, see, e.g., In                                                    __ _____  ___  ____  __          re Allegheny Int'l, Inc., 126  B.R. at 924 ("Creation of a  trust          ________________________          to be expended on  contingent claims is a frequently  used mecha-          nism  for  insuring that  such  funds  are properly  disbursed.")          (citing  In re Johns-Manville Corp., 68  B.R. 618, 625-26 (Bankr.                   __________________________          S.D.N.Y. 1986,  aff'd, 78  B.R. 407 (S.D.N.Y.  1987), aff'd,  843                          _____                                 _____          F.2d  636 (2d  Cir.  1988)), exclusively  for "necessary"  future          response  costs at  the facility.   See  3 Collier  on Bankruptcy                                              ___    ______________________            503.01, at 503-5 (citing In re Verco Indus., Inc., 20 B.R. 664,                                     ________________________          665  (Bankr. 9th  Cir. 1982) (holding  that bankruptcy  court has          discretion to order early payment of an administrative expense));          cf. supra note 12.  In this manner, the EPA debt would be reduced          ___ _____          pro tanto by  any disbursement  from the  trust account,  thereby          ___ _____          effecting a de  facto "fixing" of  the EPA debt should  EPA later                      __  _____          attempt to  file a claim against the chapter 7 estate.  See supra                                                                  ___ _____          note 7.                                          42          under CERCLA.  In that event, Juniper's claim would be subject to          the section 502(e)(2) "fixing"  requirement and Juniper would not          be entitled  to administrative  expense priority with  respect to          any allowable CERCLA claim.          B.   Juniper's Appeal: Disallowance of          B.   Juniper's Appeal: Disallowance of               Attorney Fees (42 U.S.C.   9607(a)).               Attorney Fees (42 U.S.C.   9607(a)).               ___________________________________                    Juniper argues  for an award of  attorney fees pursuant          to 42 U.S.C.   9607(a)(4)(B), which makes no reference to "attor-          ney fees"  in private  cost recovery  actions.   Juniper contends          that  the term  "necessary costs of  response" should  be broadly          construed  to encompass  attorney  fee awards  so  as to  advance          CERCLA's  remedial  purposes by  inducing  PRPs  to cooperate  in          initiating  prompt cleanup  efforts.   We affirm  on  the grounds          advanced  in the well-reasoned district court opinion.  See In re                                                                  ___ _____          Hemingway Transp., Inc., 108 B.R. at 383.          _______________________                    Absent an explicit statutory  authorization, a party is          not entitled to recover attorney fees simply because it prevailed          in the  litigation.  Runyon v. McCrary, 427 U.S. 160, 185 (1976).                               ______    _______          CERCLA  contains explicit  provisions  authorizing  attorney  fee          awards in certain other types of actions.  See, e.g., 42 U.S.C.                                                       ___  ____          9610(c)  (employee-whistleblowers  may  recover  "all  costs  and          expenses  (including attorney's fees") .  . . .");  id.   9659(f)                                                              ___          (prevailing parties in private citizen suits may recover costs of          litigation,  "including reasonable  attorney  and expert  witness          fees"). Moreover, Congress  did not  consider, and  SARA did  not          include,  any  attorney fee  award  amendment  applicable to  the                                          43          private  cost recovery  provision in  section 9607(a)(4)(B).   We          therefore  conclude that  Congress has  elected not  to authorize          attorney fee awards in these actions.  Cf. Dedham Water, 972 F.2d                                                 ___ ____________          at  461  ("[L]itigation-related  expenses  are,  of  course,  not          compensable as  response costs incurred by  private parties under          CERCLA   [9607].")  (citing Regan v.  Cherry Corp., 706  F. Supp.                                      _____     ____________          145, 149  (D.R.I. 1989)).  Although  a strong case  might be made          that attorney fee awards in private cost recovery actions promote          CERCLA's remedial  aims, see, e.g.,  General Elec. Co.  v. Litton                                   ___  ____   _________________     ______          Indus. Automation  Sys., Inc.,  920  F.2d 1415  (8th Cir.  1990),          _____________________________          cert. denied,  111 S. Ct. 1390  (1991), that case is  one for the          ____  ______          legislative  venue.   Alyeska  Pipeline Serv.  Co. v.  Wilderness                                ____________________________     __________          Soc'y, 421  U.S. 240,  263-64 (1975)  ("[I]t would be  difficult,          _____          indeed, for the court,  without legislative guidance, to consider          some  statutes  important and  others  unimportant  and to  allow          attorneys' fees only in  connection with the former.");  see also                                                                   ___ ____          U.S.  Steel Supply Inc.  v. Chatwins Group,  Inc., No. 89-C20241,          _______________________     _____________________          1992 U.S. App. LEXIS 13722, at 45-46 (N.D. Ill. Sept. 9, 1992).                    Juniper argues, nonetheless, that only a small  portion          of  its attorney fees were  incurred in preparation  for the "re-          sponse  cost"  recovery  litigation itself,  the  greater portion          having  been incurred to ensure  that Juniper's "response" was in          compliance with the administrative  order issued by the EPA.   We          conclude  that the present claim was waived.  At trial, Juniper's          attorney fee billings  were admitted in  evidence.  Juniper  sug-          gested no  distinction between  attorney fees incurred  for liti-                                          44          gative  and  administrative  purposes.27   Juniper's  failure  to          advance  the present  contention  below  deprived the  bankruptcy          court  of an  opportunity  to consider  it,  thereby waiving  the          claim.   See In re LaRoche,  969 F.2d 1299, 1305  (1st Cir. 1992)                   ___ _____________          (arguments  not raised in  bankruptcy court cannot  be raised for          first time on appeal); In re 604 Columbus Ave.  Realty Trust, 968                                 _____________________________________          F.2d 1332, 1343 (1st Cir. 1992) (same).28           C.  The Trustee's Cross-Appeal:  Administrative          C.  The Trustee's Cross-Appeal:  Administrative              Expense Priority for Past Response Costs.              Expense Priority for Past Response Costs.              ________________________________________                    The trustee appeals  the allowance  of Juniper's  claim          for past response costs as  an administrative expense entitled to          priority distribution.  The bankruptcy court ruled that Juniper's          CERCLA liability  resulted from its postpetition  purchase of the          facility from Hemingway-Bristol, debtor in possession, during the          course  of the chapter 11 proceeding.  The bankruptcy court found          that it would be  fundamentally "unfair" not to allow  Juniper to                                        ____________________               27Prior  to  admitting  Juniper's  attorney  fee billing  in          evidence, the bankruptcy judge stated:  "[A]ssuming  only for the          moment  that  legal services  are  a compensable  item  of damage          [under CERCLA], then aren't  all reasonable fees incurred by  the          plaintiff  resulting  from  the  alleged harm,  aren't  they  all          compensable? . . . [D]idn't [Juniper's attorneys] perform servic-          es as a result of  the acts of the defendant if I find the defen-          dant  liable?"  Thus, the court plainly signaled its intention to          treat Juniper's entire attorney fee request as either compensable          or noncompensable.               28Even  assuming  the issue  was  preserved,  the record  on          appeal does not enable reliable appellate review.  It is impossi-          ble to determine with  reasonable confidence whether the attorney          fees incurred  by Juniper were reasonably  "necessary" to facili-          tate  its compliance  with  the EPA  administrative order,  or to          discover  the existence or whereabouts of other PRPs who might be          amenable to suit by Juniper in an action for contribution.                                          45          receive  payment of  its contribution claim  in advance  of other          creditors.  See supra note 17 (noting court's reliance on Reading                      ___ _____                                     _______          Co. v. Brown, 391 U.S. 471 (1968)).          ___    _____                    We  affirm the  allowance of  Juniper's claim  for past          response costs as an  administrative expense entitled to priority          distribution under Bankruptcy Code    503(b)(1)(A), 507(a)(1) and          726(a)(1).  See  Norris v.  Lumbermen's Mut. Cas.  Co., 881  F.2d                      ___  ______     __________________________          1144,  1151-52 (1st Cir. 1989) (appellate court may affirm on any          ground supported by the record).  As concerns Juniper's claim for          CERCLA  response  costs previously  incurred, its  entitlement to          priority  does not  hinge  on the  court's  determination of  the          merits  of  Juniper's  "innocent  landowner" defense.    Even  if          Juniper and  the Hemingway-Bristol estate are  co-"liable" on the          EPA  debt, Juniper's claim  for past  response costs  escapes the          section  502(e)(1)(B)  co-liability  problem encountered  by  its          claim  for  future response  costs,  because  Juniper's right  to          payment  for past  response costs  became "fixed"  upon Juniper's          incurrence of  actual and necessary  response costs prior  to the          time its claim was considered for  allowance.  On the other hand,          if Juniper and  the estate are  not co-"liable" on the  EPA debt,          because  Juniper  has the  benefit  of  the "innocent  landowner"          defense, both its  past and future response costs are recoverable          as priority administrative expenses  under either Mammoth Mart or                                                            ____________          Reading.          _______                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                                          46                    We vacate the  bankruptcy court's section  502(e)(1)(B)          disallowance of  Juniper's claim for  future response costs.   On          remand,  the bankruptcy court shall permit  the chapter 7 trustee          and  Juniper a  reasonable time  within which  to  file surrogate          claims in  behalf of the EPA  under sections 501(b) or  501(c) of          the  Bankruptcy Code.  Should the trustee file a timely surrogate          claim,  and  should  Juniper  choose to  press  for  simultaneous          allowance  of  its so-called  "direct"  claim,  the court  should          determine  whether  Juniper would  be  entitled  to an  "innocent          landowner"  defense  pursuant to  42  U.S.C.    9601(35)(B).   If          Juniper is  so entitled, its  claim for "contribution"  should be          allowed  as an administrative expense.   If not  so entitled, its          claim  should be disallowed unless  and until Juniper "fixes" its          right  to contribution  by actually  incurring any  such response          costs by the time its claim  is considered for allowance.  If the          chapter  7 trustee  elects not  to file  a surrogate  claim under          section 501(b), thereby waiving  the section 502(e)(1) (B) objec-          tion  to Juniper's direct claim against the chapter 7 estate, the          court should receive evidence relating to the extent of Juniper's          anticipated response costs and should allow Juniper's claim as an          administrative expense of the chapter 11 estate.                    The order  disallowing an  award of attorney  fees, and                    The order  disallowing an  award of attorney  fees, and                    _______________________________________________________          the  order allowing Juniper's claim for past response costs as an          the  order allowing Juniper's claim for past response costs as an          _________________________________________________________________          administrative  expense,  are affirmed.    The  order disallowing          administrative  expense,  are affirmed.    The  order disallowing          ______________________________________     ______________________          Juniper's claim for future response costs is vacated and remanded          Juniper's claim for future response costs is vacated and remanded          _________________________________________________________________          to the  bankruptcy court for further  proceedings consistent with          to the  bankruptcy court for further  proceedings consistent with          _________________________________________________________________                                          47          the opinion herein; costs to neither party.          the opinion herein; costs to neither party.          __________________________________________                                          48
