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Analysis by Diana Cariboni
MONTEVIDEO, Apr 23 2010 (IPS) - If anything was left clear by the International Court of Justice (ICJ) ruling on the long-running pulp mill dispute between Argentina and Uruguay, it was the weakness of rules and regulations to prevent pollution of the Uruguay River in the 508-km stretch shared by the two countries.
In its 80-page, 282-paragraph verdict, the Court stated on Tuesday, Apr. 20 that “there is no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due diligence” to keep the Orion (Botnia) pulp mill from polluting the border river since it began to operate in November 2007.
But in some cases, the reason for the lack of evidence may be more worrying.
Both countries agree that the total concentration of phosphorus in the river was already high before the paper pulp plant began to be built on the Uruguayan side of the river.
But the water quality regulations followed by the agency created to jointly administer the river, the Uruguay River Administrative Commission (CARU), do not include maximum limits for phosphorus and phosphates, which abound in the region due to the use of fertilisers by farmers and to the discharge of urban sewage.
And Argentina does not even have standards on the total concentration of phosphorus in water. To determine whether or not the pulp mill had exceeded acceptable limits, the Court had to use Uruguay’s standards.
Argentina filed its complaint against Uruguay before the world court on May 4, 2006, accusing it of failing to “inform, notify and negotiate” when it authorised construction of the plant on the banks of the shared river, as stipulated by the joint Uruguay River Statute or treaty.
The Court agreed with that argument, but distinguished between “procedural” and “substantive” breaches, and found Uruguay guilty only of the former.
CARU, established by the river treaty in 1975, has the authority to determine rules and regulations to protect the health of the river. But the standards outlined in its Digest are not “exhaustive,” the Court noted.
For example, the Digest only sets general limits on a few industrial effluents, like “hydrocarbons,” “sedimentable solids” and “oils and greases,” and leaves it up to each country to regulate.
However, the paper pulp industry generates a broad range of other waste products that are discharged into the river. In addition, it releases gaseous emissions into the air. But neither the river treaty nor CARU set air quality standards.
Nor does CARU have standards on substances in question in this case, such as nitrogen, nitrates, adsorbable organic halides (AOX), or dioxins and furans (persistent organic pollutants that pose a threat to human health).
Assessing measurements of the concentration of these substances in the river and comparing them with Uruguay’s regulations, the Court stated that it “does not appear” that the discharges by the plant have exceeded the limits, “except for a few instances” involving nitrogen, nitrates, and AOX.
One such instance occurred on Jan. 9, 2008, after the pulp mill began operating, when the concentration of AOX at one of the points where samples were taken reached 13 mg per litre, more than double the limit of six mg per litre.
But given the lack of evidence that it was an “enduring problem” rather than an isolated event, “the Court is not in a position to conclude that Uruguay has breached the provisions” of the 1975 river treaty, the ruling said.
Another point of contention was the site chosen for the pulp mill, which was built by paper and pulp company Botnia and sold in December to UPM, another Finnish firm, near the western Uruguayan city of Fray Bentos, 35 km from the Argentine city of Gualeguaychú.
Buenos Aires and Montevideo used different modeling systems that provided differing results on the geomorphological and hydrodynamic characteristics of the river — like the rate and direction of flow of the water — which affect the dispersal and dilution of pollutants.
These characteristics of the river, such as phenomena of low flow and stagnation, vary depending on the area and make it possible to establish acceptable levels of pollutants that can be absorbed, diluted or dispersed.
But once again, CARU failed to take into account such factors or order that they be studied, and as a result, no limits were set.
The ruling thus states that “in so far as it is not established that the discharges of effluent of the Orion (Botnia) mill have exceeded the limits set by those standards, in terms of the level of concentrations, the Court finds itself unable to conclude that Uruguay has violated its obligations under the 1975 Statute.”
The magistrates added that “should such inadequacy (in regulatory capacity) be detected, particularly with respect to certain areas of the river such as at Fray Bentos, the Parties should initiate a review of the water quality standards set by CARU and ensure that such standards clearly reflect the characteristics of the river and are capable of protecting its waters and its ecosystem.”
After the initial sense of relief caused by the verdict in Montevideo, Uruguayan Foreign Minister Luis Almagro said Wednesday that he would suggest to Buenos Aires the adoption of a “real environmental statue.”
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