PULP MILLS (JUDGMENT)
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increase over and above the standard value for any of the critical
parameters.” (DINAMA Report, p. 21.)
246. The Court further notes that the initial environmental authorization, granted on 15 February 2005, required compliance by Botnia with
those conditions, with CARU standards and with best available techniques as included in the December 2001 IPPC-BAT of the European
Commission. It also required the completion of an implementation plan
for mitigation and compensation measures. That plan was completed by
the end of 2007 and the authorization to operate was granted on 8 November 2007. On 29 April 2008, Botnia and the OSE concluded an Agreement Regarding Treatment of the Municipal Wastewater of Fray Bentos,
aimed at reducing total phosphorus and other contaminants.
247. The Court considers that the amount of total phosphorus discharge into the river that may be attributed to the Orion (Botnia) mill is
insignificant in proportionate terms as compared to the overall total
phosphorus in the river from other sources. Consequently, the Court
concludes that the fact that the level of concentration of total phosphorus
in the river exceeds the limits established in Uruguayan legislation in
respect of water quality standards cannot be considered as a violation of
Article 41 (a) of the 1975 Statute in view of the river’s relatively high
total phosphorus content prior to the commissioning of the plant, and
taking into account the action being taken by Uruguay by way of compensation.
248. The Court will now turn to the consideration of the issue of the
algal bloom of 4 February 2009. Argentina claims that the algal bloom of
4 February 2009 was caused by the Orion (Botnia) mill’s emissions of
nutrients into the river. To substantiate this claim Argentina points to the
presence of effluent products in the blue-green algal bloom and to various satellite images showing the concentration of chlorophyll in the
water. Such blooms, according to Argentina, are produced during the
warm season by the explosive growth of algae, particularly cyanobacteria, responding to nutrient enrichment, mainly phosphate, among other
compounds present in detergents and fertilizers.
249. Uruguay contends that the algal bloom of February 2009, and
the high concentration of chlorophyll, was not caused by the Orion (Botnia) mill but could have originated far upstream and may have most
likely been caused by the increase of people present in Gualeyguaychú
during the yearly carnival held in that town, and the resulting increase in
sewage, and not by the mill’s effluents. Uruguay maintains that Argentine data actually prove that the Orion (Botnia) mill has not added to the
concentration of phosphorus in the river at any time since it began
operating.
250. The Parties are in agreement on several points regarding the algal
bloom of 4 February 2009, including the fact that the concentrations of
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