Data Centres: Irish environmental issues

Introduction

Environmental legislation in Ireland is principally administered and enforced in three ways:

(i) by the Environmental Protection Agency (EPA);

(ii) by local authorities throughout Ireland and

(iii) by the courts. 

The Minister for the Communications, Climate Action & Environment has an important policy setting role and the Health & Safety Authority is responsible for the enforcement of occupational health and safety law.

Many activities need both planning permission and an environmental permit. These regimes are separate.  Planning permission deals with the entitlement to construct infrastructure and use it for a particular purpose, but does not typically deal with operational requirements. Set out below are some examples of the types of licenses or permits that are relevant to data centres.

General permits

Activities likely to have a significant effect on the environment (known as 'scheduled activities') require a separate environmental license from the EPA. However, data centres typically do not require such licenses.

A lower grade of license or permit may be necessary from a local authority or other administrative body for activities such as minor air emissions, discharge of trade effluent to drains and sewers, smaller waste storage, transfer and recovery operations which are likely to have a lesser effect on the environment, and which do not come within the scheduled activities.  Data centres typically require some or all of these licenses.

Commission for Regulation of Utilities and Energy (CRU) Licenses / Authorisations

• A generation license is required for generators that exceed 1MW.
• Application generally takes between 6 and 12 weeks to process.
• Generators with installed capacities of 1MW or less are authorised by the CRU by way of order, which is a less onerous application process.

Greenhouse Gas (GHG) Permits

• Required for any installation where fuel is burned in combustion units of 3MW rated thermal input or above for any purpose and which, when aggregated, together exceed 20MW rated thermal input.
• All units with a rated thermal input capacity of less than 3MW must be excluded from the determination of total thermal input capacity.
• Should the aggregation of the remaining units still exceed 20MW, all units regardless of thermal input capacity shall be included for permitting. A GHG permit may therefore be required for back-up generators.

Effluent Discharge Licenses

• Required for the discharge of trade effluent (which includes condensate from cooling systems) or sewage effluent to a public sewer.
• Granted by Irish Water.
• Such licenses will impose conditions on the content and quantity of effluent, set fees payable, and require disclosure of accidental breach.

Specific data centre issues

Fuel storage and Dangerous Substances

If a data centre stores 2,500 tonnes or more of gas oil (i.e. diesel fuel) for the purposes of running back-up generators it will be classified as a lower tier site and will have to adhere to certain requirements of the Seveso III Directive.  A data centre would have to store 25,000 tonnes or more of gas oil to be considered an upper tier Seveso site. The Seveso III Directive is aimed at preventing major accidents involving dangerous substances and limiting the consequences in the event of such a major accident.

Potential for spills from the back-up generator's fuel storage tanks

All fuel storage tanks used for the purpose of running back-up generators at data centres should incorporate secondary containment measures (e.g. bunding).  This means that in the event of a spillage, an environmental pollution incident is prevented.  Regular integrity testing is recommended.

Energy Auditing

The Energy Efficiency Directive requires companies that are not Small and Medium Enterprises (non-SMEs) to have energy audits carried out by qualified and/or accredited experts.  Further audits must be conducted every four years from the date of the previous energy audit.  However, non-SMEs that are implementing an energy or environmental management system (certified by an independent body according to the relevant European or International Standards e.g. ISO) are exempted from the energy auditing requirements, provided that the management system concerned includes an energy audit on the basis of the minimum criteria set out in Annex VI of the Directive. 

Waste Electrical and Electronic Equipment (WEEE)

The WEEE Regulations impose obligations on persons who supply electrical and electronic equipment to the Irish market, whether as retailers, importers or manufacturers.  The purpose of the Regulations is to contribute to sustainable production and consumption by the prevention of WEEE and, in addition, by the re-use, recycling and other forms of recovery of such wastes so as to reduce the disposal of waste.  Operators of data centres will need to consider whether they come within the scope of these Regulations. There are a number of approved producer compliance schemes that assists companies in meeting their obligations for the responsible management of WEEE.

Restriction of Hazardous Substances (RoHS)

The RoHS Directive limits the amount of six hazardous substances that can be used in the manufacturing of electrical and electronic equipment.  Manufacturers must ensure only compliant products are produced.  The implications for data centre operators is that all electronic products, sub-assemblies or components imported into Ireland for use must be RoHS compliant, unless a specific exemption can be availed of.

Ozone Depleting Substances (F-Gases) in cooling systems

EU policy aims to significantly reduce greenhouse gas emissions and a Regulation ((EU) No 517/2014) seeks to achieve this objective through market bans, the phase down of hydrofluorocarbons and additional reporting and leak-check requirements.   Based on the type of cooling systems in place, data centre operators will have to consider whether the Regulation applies.

Noise and generator emissions

Data centre operators should ensure that noise and fugitive emissions from back-up generators are mitigated and reduced as much as possible in order that they do not cause nuisance to neighbouring properties.  Noise nuisance claims tend to feature regularly in court cases.

Waste Management

Data centre operators must ensure that all waste is recycled or disposed of in the correct manner.  This means employing the services of a waste contractor who is licensed to accept, transport and dispose of/recycle the waste.

Health and Safety law

In Ireland, health and safety law applies to both employees and employers, imposing obligations on both of them, with the majority of obligations falling on the employer. The employer has the primary responsibility to ensure that they provide a safe place and safe systems of work for their employees and that this is documented.  They must take appropriate measures to ensure that the health and safety of their employees is protected.  There is an important qualification to this duty: it applies only "so far as is reasonably practicable".  However, it is a very high standard to meet and the courts interpret this against the employer.  Obligations are also owed to others i.e. non-employees who may be affected e.g. contractors and visitors.

Potential sources of pollution from adjoining land-use

Before a data centre is built at any location, the risk of pollution travelling from neighbouring properties onto the data centre property should be assessed and a baseline established.  Environmental due diligence prior to purchase or leasing property is strongly recommended.

For more information in relation to this topic, please contact Jason Milne, Partner, or any member of the A&L Goodbody Environmental & Planning Team.

Date published: 18 June 2019