PULP MILLS (JUDGMENT)
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increase in the level of concentrations of phenolic substances in the river
to the operations of the Orion (Botnia) mill.
(iv) Presence of nonylphenols in the river environment
255. Argentina claims that the Orion (Botnia) mill emits, or has emitted, nonylphenols and thus has caused damage to, or at least has substantially put at risk, the river environment. According to Argentina, the
most likely source of these emissions are surfactants (detergents), nonylphenolethoxylates used to clean the wood pulp as well as the installations
of the plant itself. Argentina also contends that from 46 measurements
performed in water samples the highest concentrations, in particular
those exceeding the European Union relevant standards, were determined in front-downstream the mill and in the bloom sample collected on
4 February 2009, with lower levels upstream and downstream, indicating
that the Orion (Botnia) mill effluent is the most probable source of these
residues. In addition, according to Argentina, bottom sediments collected
in front-downstream the mill showed a rapid increase of nonylphenols
from September 2006 to February 2009, corroborating the increasing
trend of these compounds in the River Uruguay. For Argentina, the spatial
distribution of sub-lethal effects detected in rotifers (absence of
spines), transplanted Asiatic clams (reduction of lipid reserves) and fish
(estrogenic effects) coincided with the distribution area of nonylphenols
suggesting that these compounds may be a significant stress factor.
256. Uruguay rejects Argentina’s claim relating to nonylphenols and
nonylphenolethoxylates, and categorically denies the use of nonylphenols
and nonylphenolethoxylates by the Orion (Botnia) mill. In particular, it
provides affidavits from Botnia officials to the effect that the mill does
not use and has never used nonylphenols or nonylphenolethoxylate
derivatives in any of its processes for the production of pulp, including in
the pulp washing and cleaning stages, and that no cleaning agents containing nonylphenols are or have been used for cleaning the plant’s
equipment (Affidavit of Mr. González, 2 October 2009).
257. The Court recalls that the issue of nonylphenols was included in
the record of the case before the Court only by the Report submitted by
Argentina on 30 June 2009. Although testing for nonylphenols had been
carried out since November 2008, Argentina has not however, in the
view of the Court, adduced clear evidence which establishes a link
between the nonylphenols found in the waters of the river and the Orion
(Botnia) mill. Uruguay has also categorically denied before the Court
the use of nonylphenolethoxylates for production or cleaning by the
Orion (Botnia) mill. The Court therefore concludes that the evidence in
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