PULP MILLS (JUDGMENT)
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are above the CARU minimum and are the same upstream and downstream. Thus, the Court concludes that there appears to be no significant
difference between the sets of data over time and that there is no evidence
to support the contention that the reference to “oxidabilidad” in the
OSE report referred to by Argentina should be interpreted to mean “dissolved oxygen”.
(ii) Phosphorus
240. There is agreement between the Parties that total phosphorus levels in the River Uruguay are high. According to Uruguay, the total
amount of (natural and anthropogenic) phosphorus emitted into the river
per year is approximately 19,000 tonnes, of which the Orion (Botnia) mill
has a share of some 15 tonnes (in 2008) or even less, as was expected for
2009. These figures have not been disputed by Argentina during the proceedings. Uruguay contends further that no violation of the provisions
of the 1975 Statute can be alleged since the high concentration cannot
be clearly attributed to the Orion (Botnia) mill as the source, and since
no standard is set by CARU for phosphorus. Uruguay maintains also
that based on data provided by DINAMA as compared to baseline
data also compiled by DINAMA, it can be demonstrated that “[t]otal
phosphorus levels were generally lower post-start-up as compared
to the 2005-2006 baseline” (EcoMetrix Third Monitoring Report,
March 2009).
241. A major disagreement between the Parties relates to the relationship between the higher concentration of phosphorus in the waters of the
river and the algal bloom of February 2009 and whether operation of the
Orion (Botnia) mill has caused the eutrophication of the river. Argentina
claims that the Orion (Botnia) mill is the cause of the eutrophication and
higher concentration of phosphates, while Uruguay denies the attributability of these concentrations as well as the eutrophication to the operation of the plant in Fray Bentos.
242. The Court notes that CARU has not adopted a water quality
standard relating to levels of total phosphorus and phosphates in the
river. Similarly, Argentina has no water quality standards for total phosphorus. The Court will therefore have to use the water quality and effluent limits for total phosphorus enacted by Uruguay under its domestic
legislation, as characterized by the Court in paragraph 200 above, to
assess whether the concentration levels of total phosphorus have exceeded
the limits laid down in the regulations of the Parties adopted in accordance with Article 41 (a) of the 1975 Statute. The water quality standard
for total phosphorus under the Uruguayan Regulation is 0.025 mg/L for
certain purposes such as drinking water, irrigation of crops for human
consumption and water used for recreational purposes which involve
direct human contact with the water (Decree No. 253/79, Regulation of
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