68
Opinion of the Court
necessarily be different under the two tests. "The question is not whether the parent operates the subsidiary, but rather whether it operates the facility, and that operation is evidenced by participation in the activities of the facility, not the subsidiary. Control of the subsidiary, if extensive enough, gives rise to indirect liability under piercing doctrine, not direct liability under the statutory language." Oswald 269; see also Schiavone v. Pearce, 79 F. 3d 248, 254 (CA2 1996) ("Any liabilities [the parent] may have as an operator, then, stem directly from its control over the plant"). The District Court was therefore mistaken to rest its analysis on CPC's relationship with Ott II, premising liability on little more than "CPC's 100-percent ownership of Ott II" and "CPC's active participation in, and at times majority control over, Ott II's board of directors." 777 F. Supp., at 575. The analysis should instead have rested on the relationship between CPC and the Muskegon facility itself.
In addition to (and perhaps as a reflection of) the erroneous focus on the relationship between CPC and Ott II, even those findings of the District Court that might be taken to speak to the extent of CPC's activity at the facility itself are flawed, for the District Court wrongly assumed that the actions of the joint officers and directors are necessarily attributable to CPC. The District Court emphasized the facts that CPC placed its own high-level officials on Ott II's board of directors and in key management positions at Ott II, and that those individuals made major policy decisions and conducted day-to-day operations at the facility: "Although Ott II corporate officers set the day-to-day operating policies for the company without any need to obtain formal approval from CPC, CPC actively participated in this decision-making because high-ranking CPC officers served in Ott II management positions." Id., at 559; see also id., at 575 (relying on "CPC's involvement in major decision-making and day-today operations through CPC officials who served within Ott II management, including the positions of president and chief
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