PULP MILLS (JUDGMENT)
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river are : dissolved oxygen ; total phosphorus (and the related matter of
eutrophication due to phosphate) ; phenolic substances ; nonylphenols
and nonylphenolethoxylates ; and dioxins and furans. The Court now
turns to the assessment of the evidence presented to it by the Parties with
respect to these parameters and substances.
(i) Dissolved oxygen
238. Argentina raised for the first time during the oral proceedings the
alleged negative impact of the Orion (Botnia) mill on dissolved oxygen in
the river referring to data contained in the report of the Uruguayan OSE.
According to Argentina, since dissolved oxygen is environmentally beneficial and there is a CARU standard which sets a minimum level of dissolved oxygen for the river waters (5.6 mg/L), the introduction by the
Orion (Botnia) mill into the aquatic environment of substances or energy
which caused the dissolved oxygen level to fall below that minimum constitutes a breach of the obligation to prevent pollution and to preserve
the aquatic environment. Uruguay argues that Argentina’s figures taken
from the measurements of the OSE were for “oxidabilidad”, which refers
to the “demand for oxygen” and not for “oxígeno disuelto” — i.e., dissolved oxygen. Uruguay also claims that a drop in the level of demand
for oxygen shows an improvement in the quality of the water, since the
level of demand should be kept as low as possible.
239. The Court observes that a post-operational average value of
3.8 mg/L for dissolved oxygen would indeed, if proven, constitute a violation of CARU standards, since it is below the minimum value of 5.6 mg
of dissolved oxygen per litre required according to the CARU Digest (E3,
Title 2, Chapter 4, Section 2). However, the Court finds that the allegation made by Argentina remains unproven. First, the figures on which
Argentina bases itself do not correspond to the ones for dissolved oxygen
that appear in the EcoMetrix Third Monitoring Report, where the samples taken between February and October 2008 were all above the
CARU minimum standard for dissolved oxygen. Secondly, DINAMA’s
Surface Water and Sediment Quality Data Report of July 2009 (Six
Month Report : January-June) (hereinafter “DINAMA’s Water Quality
Report”) (see p. 7, fig. 4.5 : average of 9.4 mg/L) displays concentrations
of dissolved oxygen that are well above the minimum level required
under the CARU Digest. Thirdly, Argentina’s 30 June 2009 report
says in its summary that the records of water quality parameters over
the period were “normal for the river with typical seasonal patterns
of temperature and associated dissolved oxygen”. The hundreds of
measurements presented in the figures in that chapter of the “Colombo
Report” support that conclusion even taking account of some slightly
lower figures. Fourthly, the figures relating to dissolved oxygen
contained in DINAMA’s Water Quality Report have essentially
the same characteristics as those gathered by Argentina — they
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