ENVIRONMENTAL ASSESSMENT

DOI-BLM-WO-3900-2012-0001-EA

PROPOSED RULE

OIL SHALE MANAGEMENT

TITLE 43 CODE OF FEDERAL REGULATIONS (CFR)

PARTS 3900, 3920, and 3930

PREPARED BY:

Department of the Interior

Bureau of Land Management

Washington Office, WO-320

20 M Street, SE

Washington, DC 20003

March 2013
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INTRODUCTION

On November 18, 2008, the Bureau of Land Management (BLM) published in the Federal 

Register the Final Oil Shale Commercial Leasing regulations (73 FR 69414). Those regulations 

were required by the Energy Policy Act of 2005 (EPAct) (42 U.S.C. 15927), which became law 

on August 8, 2005. 

On January 16, 2009, a lawsuit, Colorado Environmental Coalition v. Salazar, challenging parts 

of the Final Oil Shale Commercial Leasing regulations, was filed in the United States District 

Court for the District of Colorado. A settlement agreement was signed on February 15, 2011. 

As part of the settlement agreement, the Secretary of the Interior agreed to propose revisions to 

parts of the 2008 commercial oil shale regulations addressing the royalty rate and certain 

environmental protection requirements. The proposed rule provides the BLM with an 

opportunity to consider the 2008 regulations in light of the emerging technology necessary to 

economically develop oil shale resources. 

Per 43 CFR 46.210(i), Federal actions involving rulemaking that are of an administrative, 

financial, legal, technical, or procedural nature; or whose environmental effects are too broad, 

speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to 

the National Environmental Policy Act (NEPA) process, either collectively or case-by-case, are 

categorically excluded from the NEPA process under 43 CFR 46.205(b), unless any of the 

extraordinary circumstances under 43 CFR 46.215 apply. This rule itself arguably does not 

trigger any of the extraordinary circumstances. However, the BLM is electing to prepare an 

Environmental Assessment (EA) for this rulemaking in order to aid its decision-making process. 

This EA analyzes the effects on the human environment of the proposed revised commercial oil 

shale regulations and alternatives. 

In the future, at the time that a proposed commercial oil shale project is submitted to the BLM 

for review, site-specific NEPA analysis will be conducted to determine if approval of that project 

is a major Federal action significantly affecting the quality of the human environment and 

whether that project would require the preparation of an Environmental Impact Statement (EIS).

PURPOSE AND NEED FOR PROPOSED ACTION

The BLM is proposing to revise parts of the 2008 commercial oil shale regulations by revising 

43 CFR Parts 3900, 3920, and 3930 in order to add flexibility to the royalty system and to 

increase the effectiveness of the environmental protection requirements. The settlement 

agreement in Colorado Environmental Coalition v. Salazar requires the BLM to publish the 

proposed amendments, but it does not determine the final outcome of the rulemaking process. 

BLM DECISION TO BE MADE

The EPAct requires the Secretary of the Interior to establish a regulatory framework for an oil 

shale and tar sands commercial leasing program to increase domestic energy production from 

strategic unconventional fuels. In 2008, final commercial oil shale regulations at 43 CFR Parts 

3900 to 3930 were adopted. Several of these regulations were challenged in Federal court and
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the Colorado Environmental Coalition v. Salazar settlement agreement stipulated that the BLM 

propose revisions to the 2008 commercial oil shale regulations by addressing the royalty rate and 

certain environmental protection requirements.

The decision to be made is whether to adopt the proposed revised commercial oil shale 

regulations at 43 CFR Parts 3900, 3920, and 3930, which include changes to the royalty rate and 

certain environmental requirements, keep the current regulations, or adopt alternative regulatory 

language.

SCOPING

The BLM oil shale regulatory team, with members from the BLM Washington Office (WO) and 

the BLM Colorado State Office, conducted the internal scoping. The team reviewed the 

Colorado Environmental Coalition v. Salazar settlement agreement and proposed revised 

regulatory language for the commercial oil shale regulations. This group met numerous times 

throughout the development of the proposed and alternative regulatory language and discussed 

potential issues.

DESCRIPTION OF THE PROPOSED ACTION AND ALTERNATIVES

The BLM is proposing to revise the 2008 commercial oil shale regulations to remove the royalty 

rate from the regulations, and give the Secretary of the Interior or the BLM authority to set 

royalty rates prior to or at the time of conversion from a research, development and 

demonstration (R, D and D) lease or in a notice of lease sale, respectively. The proposed 

revisions would also clarify the provision that the BLM will consider issuing a commercial oil 

shale lease only (1) upon application of an R, D and D lessee to convert its lease to a commercial 

lease, or (2) after the BLM issues a call for expression of leasing interest (See Section 

3925.10(a)). The proposed revisions would further specify the kinds of information regarding 

potential environmental and other consequences of development the BLM would require 

potential lessees to provide. The proposed revision would impose requirements that operations 

be conducted in a manner that would reduce certain potential environmental impacts. The 

proposed revision to the regulation would impose a minimum standard that commercial leases 

(including those resulting from conversion of R, D and D leases) and Plan of Development 

(POD) applications would have to meet for approval. 

ALTERNATIVE A: NO CHANGE TO THE EXISTING 2008 COMMERCIAL OIL 

SHALE REGULATIONS (NO ACTION ALTERNATIVE)

Under this alternative, the 2008 Final Oil Shale Commercial Leasing regulations would remain 

unchanged. 
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ALTERNATIVE B: REVISE THE 2008 COMMERCIAL OIL SHALE REGULATIONS 

(PROPOSED ACTION)

Pursuant to the Colorado Environmental Coalition v. Salazar settlement agreement, the BLM is 

proposing to remove the royalty rates in section 3903.52 (b) of the 2008 commercial oil shale 

regulations and proposes to set the royalty rate in the notice of sale as provided in section 

3924.5(b)(3) or for R, D and D conversion, the royalty terms will be established by the Secretary

of the Interior. 

Additionally, the BLM is seeking public comment on different royalty systems as outlined 

below:

Option 1: Invite Public Comment on Proposed Lease Terms in a Proposed Notice of Lease Sale

Option 2: Invite Public Comment Using the Coal Lease Sale Process as Outlined in 43 CFR

3422.1

Option 3: Sliding Scale Royalty Based on the Market Prices of Oil and Gas

Option 4: Establish a Minimum Royalty of 12.5 Percent in Regulation, with Secretarial 

Flexibility to Establish a Higher Rate Later

The BLM is also inviting the public to propose any other royalty system that would meet the 

dual requirements of the EPAct to encourage production and ensure a fair return to the public.

The proposed revisions would also clarify that the BLM would consider issuing a commercial oil 

shale lease only (1) upon application of an R, D and D lessee to convert its R, D and D lease to a 

commercial lease, (2) or after the BLM issues a call for expression of leasing interest (See 

Section 3925.10(a)). The revised commercial oil shale regulations would add more specificity to 

the environmental information and requirements that would be included in the content of the 

POD (43 CFR 3931.11). The revised commercial oil shale regulations would specify the 

standard that would need to be met before any commercial leases would be issued (by 

conversion or otherwise) and PODs approved. The BLM proposes in this alternative that no 

commercial leases (whether by conversion or otherwise) be issued or PODs approved unless 

commercial-scale operations could be conducted without “unacceptable environmental risk.”

As an alternative to the proposed “unacceptable environmental risk” (UER) standard, the BLM 

specifically requests comments on whether “unacceptable environmental consequences” (UEC) 

might be a more appropriate standard for issuance of commercial leases in proposed section 

3925.10(a) for conversion of R, D and D leases in section 3926.10, and for approval of plans of 

development in section 3931.10.

This proposed rule would revise the regulations at 43 CFR Parts 3900, 3920, and 3930. The 

following changes, identified in bold, are being proposed.

1) § 3903.52 Production royalties.
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(a) The lessee must pay royalties on all products of oil shale that are sold from or transported off 

of the lease.

(b) The royalty rate will be set by the BLM in the notice of sale as provided in section 

3924.5(b)(3) of this part or, for R, D and D conversion, will be established by the Secretary 

of the Interior.

2) § 3925.10 Award of lease.

(a) The lease may be awarded to the highest qualified bidder whose bid meets or exceeds the 

BLM's estimate of fair market value (FMV), except as provided in §3924.10. The BLM will not 

issue a commercial lease unless it determines that oil shale operations can occur without 

unacceptable environmental risk. When the BLM determines that the lease should be 

issued, it will provide the successful bidder 3 copies of the oil shale lease form for execution. 

Commercial oil shale leases will be issued only under the procedures in this part.

(b) Within 60 calendar days after receipt of the lease forms, the successful bidder must sign all 

copies and return them to the proper BLM office. The successful bidder must also submit the 

necessary lease bond (see subpart 3904 of this chapter), the first year's rental, any unpaid cost 

recovery fees, including costs associated with the NEPA analysis, and the bidder's proportionate 

share of the cost of publication of the sale notice. The BLM may, upon written request, grant an 

extension of time to submit the items under this paragraph.

(c) If the successful bidder does not comply with this section, the BLM will not issue the lease 

and the bidder forfeits the one-fifth bonus payment submitted with the bid.

(d) If the lease cannot be awarded for reasons determined by the BLM to be beyond the control 

of the successful bidder, the BLM will refund the deposit submitted with the bid.

(e) If the successful bidder was not an applicant under §3922.20, the successful bidder must 

submit an application and the BLM may require additional NEPA analysis of the successful 

bidder's proposed operations.

3) § 3926.10 Conversion of an R, D and D lease to a commercial lease.
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(a) Applications to convert R, D and D leases, including preference right areas, into commercial 

leases, are subject to the regulations at parts 3900 and 3910, this part, and part 3930, except for 

lease sale procedures at subparts 3921 and 3924 and §3922.40. The BLM may, in its 

discretion, deny an application to convert an R, D and D lease to a commercial lease based 

on environmental or other resource considerations.

(b) A lessee of an R, D and D lease must apply for the conversion of the R, D and D lease to a 

commercial lease no later than 90 calendar days after the commencement of production in 

commercial quantities. No specific form of application is required. The application for 

conversion must be filed in the BLM state office that issued the R, D and D lease. The 

conversion application must include:

(1) Documentation that there have been commercial quantities of oil shale produced from the 

lease, including the narrative required by the R, D and D leases;

(2) Documentation that the lessee consulted with state and local officials to develop a plan for 

mitigating the socioeconomic impacts of commercial development on communities and 

infrastructure;

(3) A bid payment no less than specified in §3923.10 and equal to the FMV of the lease; and

(4) Bonding as required by §3904.14 of this chapter.

(c) The lessee of an R, D and D lease has the exclusive right to acquire any and all portions of 

the preference right area designated in the R, D and D lease up to a total of 5,120 acres in the 

lease. The BLM may, in its discretion, deny an application to convert an R, D and D lease to a 

commercial lease based on environmental or other resource considerations. The BLM may

approve the conversion application, in whole or in part, if it determines that:

(1) There have been commercial quantities of shale oil produced from the lease;

(2) The bid payment for the lease met FMV;
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(3) The lessee consulted with state and local officials to develop a plan for mitigating the 

socioeconomic impacts of commercial development on communities and infrastructure;

(4) The bond is consistent with §3904.14 of this chapter;

(5) Commercial scale operations can be conducted, subject to mitigation measures to be specified 

in stipulations or regulations, in a manner that complies with applicable law and regulation; and

(6) Commercial scale operations can be conducted without unacceptable environmental 

risk.

(d) The commercial lease must contain terms consistent with the regulations in parts 3900 and 

3910 of this chapter, this part, and part 3930 of this chapter, this part, and stipulations developed 

through appropriate NEPA analysis.

4) § 3931.10 Exploration plans and plans of development for mining and in situ operations.

(a) The POD must provide for reasonable protection and reclamation of the environment and the 

protection and diligent development of the oil shale resources in the lease.

(b) The operator must submit to the proper BLM office an exploration plan or POD describing in 

detail the proposed exploration, testing, development, or mining operations to be conducted. 

Exploration plans or PODs must be consistent with the requirements of the lease or exploration 

license and protect nonmineral resources and provide for the reclamation of the lands affected by 

the operations on Federal lease(s) or exploration license(s). All PODs and exploration plans 

must be submitted to the proper BLM office.

(c) The lessee or operator must submit 3 copies of the POD to the proper BLM office or submit it 

in an acceptable electronic format. Contact the proper BLM office for detailed information on 

submitting copies electronically (see §3931.40 for submission of exploration plans).

(d) The BLM will consult with any other Federal, state, or local agencies involved and review 

the plan. The BLM may require additional information or changes in the plan before approving 

it. If the BLM denies the plan, it will set forth why it was denied.
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(e) All development and exploration activities must comply with the BLM-approved POD or 

exploration plan. The BLM will not approve a POD unless it determines that operations 

under the POD can occur without unacceptable environmental risk.

(f) Activities under §§3931.11 and 3931.40, other than casual use, may not begin until 

appropriate NEPA analysis is completed and the BLM approves an exploration plan or POD.

(g) The BLM may deny a POD based on environmental or other resource considerations, 

or may require a modification of, or condition the POD to protect the environment or other 

resources.

5) § 3931.11 Content of plan of development.

The POD must contain, at a minimum, the following:

(a) Names, addresses, and telephone numbers of those responsible for operations to be conducted 

under the approved plan and to whom notices and orders are to be delivered, names and 

addresses of Federal oil shale lessees and corresponding Federal lease serial numbers, and names 

and addresses of surface and mineral owners of record, if other than the United States;

(b) A general description of geologic conditions and mineral resources within the area where 

mining is to be conducted, including appropriate maps;

(c) A copy of a suitable map or aerial photograph showing the topography, the area covered by 

each lease, the name and location of major topographic and cultural features;

(d) A statement of proposed methods of operation and development, including the following 

items as appropriate:

(1) A description detailing the extraction technology to be used;

(2) The equipment to be used in development and extraction;
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(3) The proposed access roads;

(4) The size, location, and schematics of all structures, facilities, and lined or unlined pits to be 

built;

(5) The stripping ratios, development sequence, and schedule;

(6) The number of acres in the Federal lease(s) or license(s) to be affected;

(7) Comprehensive well design and procedure for drilling, casing, cementing, testing, 

stimulation, clean-up, completion, and production, for all drilled well types, including those used 

for heating, freezing, and disposal;

(8) A description of the methods and means to protect and monitor all aquifers;

(9) Surveyed well location plats or project-wide well location plats;

(10) A description of the measurement and handling of produced fluids, including the anticipated 

production rates and estimated recovery factors;

(11) A description of the methods used to dispose of and control mining waste; and

(12) A description/discussion of the controls that the operator will use to protect the public, 

including identification of:

(i) Essential operations, personnel, and health and safety precautions;

(ii) Programs and plans for noxious gas control (hydrogen sulfide, ammonia, etc.);
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(iii) Well control procedures;

(iv) Temporary abandonment procedures; and

(v) Plans to address spills, leaks, venting, and flaring;

(e) An estimate of the quantity and quality of the oil shale resources;

(f) An explanation of how maximum economic recovery (MER) of the resource will be achieved 

for each Federal lease;

(g) Appropriate maps and cross sections showing:

(1) Federal lease boundaries and serial numbers;

(2) Surface ownership and boundaries;

(3) Locations of any existing and abandoned mines and existing oil and gas well (including well 

bore trajectories) and water well locations, including well bore trajectories;

(4) Typical geological structure cross sections;

(5) Location of shafts or mining entries, strip pits, waste dumps, retort facilities, and surface 

facilities;

(6) Typical mining or in situ development sequence, with appropriate time-frames;

(h) A watershed and groundwater protection plan, which is a plan to conduct operations in 

a manner that protects surface and groundwater resources from adverse effects on the 

quality, quantity, timing, and distribution of water resulting from operations, and to 
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monitor, adaptively manage, and mitigate adverse impacts, both during and after 

operations;

(i) An airshed review, which is a review of the scientific data and analyses currently 

available at a reasonable cost relevant to the potential effects of commercial oil shale 

operations on the air quality of the pertinent airshed. The review must provide the BLM 

with useful information to assess the effects of operations on the airshed;

(j) An integrated waste management plan, which is a plan to conduct operations in a 

manner that minimizes the production of mine waste, and to monitor, adaptively manage, 

and mitigate the impacts of waste both during and after operations; 

(k) An environmental protection plan, which is a plan to:

(1) Conduct operations in a manner that minimizes adverse effects of oil shale operations, 

on the:

(i) Quality of the air and water;

(ii) Wildlife and native plants; and

(iii) Productivity of soils; and

(2) Monitor, adaptively manage, and mitigate such adverse effects both during and after 

operations;

(l) [renumbered (h)] A narrative addressing the environmental aspects of the proposed mine or in 

situ operation, including at a minimum, the following:

(1) An estimate of the quantity of water to be used and pollutants that may enter any receiving 

waters;
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(2) A design for the necessary impoundment, treatment, control, or injection of all produced 

water, runoff water, and drainage from workings; and 

(3) A description of measures to be taken to prevent or control fire, soil erosion, subsidence, 

pollution of surface and ground water, pollution of air, damage to fish or wildlife or other natural 

resources, and hazards to public health and safety;

(m) [renumbered (i)] A reclamation plan and schedule for all Federal lease(s) or exploration 

license(s) that details all reclamation activities necessary to fulfill the requirements of §3931.20;

(n) [renumbered (j)] The method of abandonment of operations on Federal lease(s) and 

exploration license(s) proposed to protect the unmined recoverable reserves and other resources, 

including:

(1) The method proposed to fill in, fence, or close all surface openings that are hazardous to 

people or animals; and

(2) For in situ operations, a description of the method and materials to be used to plug all 

abandoned development or production wells; and

(o) [renumbered (k)] Any additional information that the BLM determines is necessary for 

analysis or approval of the POD.

ALTERNATIVE C: RETAIN ALL OF THE PROVISIONS OF THE PROPOSED 

ACTION ALTERNATIVE B EXCEPT REPLACE THE TERM UNACCEPTABLE 

ENVIRONMENTAL RISK WITH THE TERM UNACCEPTABLE ENVIRONMENTAL 

CONSEQUENCES 

In the proposed revised regulations at 43 CFR 3925.10(a), 3926.10(c)(6) and 3931.10(e), this 

alternative would replace the term “unacceptable environmental risk” with the term 

“unacceptable environmental consequences.”

OTHER ACTIONS

Concurrently, with the updating of the 2008 Final Commercial Oil Shale rules, the BLM has 

begun a new public planning process related to programmatic oil shale and tar sands 

management. The BLM is taking a fresh look at whether it is appropriate for approximately
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2,000,000 acres of Federal mineral estate to remain available for potential oil shale development, 

and approximately 431,000 acres of public land to remain available for potential development of 

tar sands. The BLM initiated the resource management plan amendment process as the result of 

the February 15, 2011, Colorado Environmental Coalition v. Salazar settlement agreement in the 

United States District Court for the District of Colorado, Civil Action No. 09-cv-00085-JKL. 

The BLM designed the planning initiative to provide the BLM and the public an opportunity to 

consider the 2008 allocation decisions in light of later information and policies concerning 

natural resources and other uses of the areas, including wilderness values. Development is a 

secondary action following leasing, and leasing is a discretionary action on the part of the 

Federal Government. Land availability for development does not mean that any of those lands 

will ultimately be leased, much less developed.

On April 14, 2011, the BLM published in the Federal Register a Notice of Intent to Prepare a 

Programmatic EIS and Possible Land Use Plan Amendments for Allocation of Oil Shale and Tar 

Sands Resources on Land Administered by the BLM in Colorado, Utah, and Wyoming. In 

February 2012, the BLM issued the Draft Programmatic Environmental Statement for Allocation 

of Oil Shale and Tar Sands Resources on Lands Administered by the Bureau of Land 

Management in Colorado, Utah, and Wyoming for a 90-day public comment period. The Notice 

of Availability for the Final PEIS, and Proposed Plan Amendments was published in the Federal 

Register on November 9, 2012. This began both the 30-day protest period, which ended 

December 10, 2012, and the 60-day Governor’s Consistency Review, which ended January 9, 

2013. Under the proposed plan amendments, approximately 679,000 acres would remain open 

for application for commercial oil shale leasing and development and approximately 132,137

acres would be open for potential tar sands leasing and development. 

AFFECTED ENVIRONMENT

The BLM administers approximately 245 million acres of public lands and 700 million acres of 

sub-surface mineral estate in the United States. This administrative responsibility includes

addressing stewardship, conservation, resource use, and the development of energy resources in 

an environmentally sound manner. Management of these public lands must be conducted in 

accordance with the multiple use principles of FLPMA (43 U.S.C. 1701 et seq.). 

The enactment of Section 369 of the EPAct, and the issuing of six R, D and D leases in 2006 and 

2007, (five in Colorado and one in Utah) demonstrate an interest in developing oil shale 

resources located on the public lands. A second round of R, D and D lease nominations took 

place in November 2009. The BLM received three nominations (two in Colorado, one in Utah); 

the two Colorado proposed parcels completed NEPA analysis in September 2012 and the BLM 

approved the parcels in November 2012, effective December 1, 2012. The BLM cancelled the 

nomination in Utah on December 7, 2012, because the applicant failed to comply with 

requirements in the request for nominations to commence analysis under NEPA.

The United States holds the world’s largest known concentration of oil shale, comprising a 

surface area of approximately 16,000 square miles. This domestic resource is located in the 

Green River Formation in Colorado, Utah, and Wyoming. Estimates of the oil resource found 

within the Green River Formation is 4.29 trillion barrels, based on the latest United States 

Geological Service (USGS) oil shale resource assessment. However, not all resources are 
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recoverable. A moderate estimate of recoverable oil from oil shale in the Green River 

Formations is approximately 800 billion barrels. More than 70 percent of the total oil shale 

acreage in the Green River Formation, including much of the richest and thickest oil shale 

deposits, is under federally owned and managed lands. 

A large portion of the oil shale deposit is located under the BLM’s jurisdiction and coincides 

with the field offices and administrative units presented in Table 1. 

Table 1. BLM Field Offices and Administrative Units which coincide with oil shale 

resources.

State Field Office Administrative Unit

Colorado

Colorado River 

Valley Field 

Office

Colorado River Valley Field Office RMP (BLM 1988, as 

amended by the Roan Plateau Plan Amendment [BLM 

2006a, 2007, 2008d])

Grand Junction Grand Junction RMP (BLM 1987)

White River White River RMP (BLM 1997a, as amended by the Roan

Plateau Plan Amendment [BLM 2006a, 2007, 2008d])

Utah

Price Price Resource Area RMP (BLM 2008f)

Monticello Monticello Field Office RMP (2008e)

Richfield Richfield Field Office RMP (2008g)

Vernal Vernal Resource Area RMP (BLM 2008h)

Wyoming

Kemmerer Kemmerer RMP (BLM 2010) 

Rawlins Rawlins RMP (BLM 2008i)

Rock Springs Green River RMP (BLM 1997b, as amended by the Jack

Morrow Hills Coordinated Activity Plan [BLM 2006b])

The BLM manages the public lands for a variety of land uses, including recreation, mining, oil 

and gas leasing, livestock grazing, and rights-of-way. Land use plans provide the framework 

that guides the decision for every action and approved use. Each of the land use plans identified 

in Table 1 contains a detailed description of the physical, biological, and socioeconomic 

environment within the boundaries of the plan. The description of the affected environment 

includes the resources present, resources uses and special designations, and socioeconomic 

setting. 

These land use plans also note specific lands that are closed to mineral development. These 

include areas designated as Wilderness Areas, Wilderness Study Areas, as well as other areas 

that are part of the National Landscape Conservation System administered by the BLM (e.g., 

National Monuments, National Conservation Areas, Wild and Scenic Rivers, and National 

Historic and Scenic Trails), and existing Areas of Critical Environmental Concern that are 

currently closed to mineral development. 
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As part of the EPAct, Congress required the Secretary of the Interior to focus analysis of

commercial oil shale leasing on the most geologically prospective lands in Colorado, Utah, and 

Wyoming. The BLM has determined that the most geologically prospective resources of the 

Green River Formation are located in the Green River, Piceance, Uinta, and Washakie Basins. 

These areas were identified based on the grade and thickness of the deposits. The BLM 

determined that the most geologically prospective oil shale resources in Colorado and Utah are 

those deposits that yield 25 gallons of shale oil per ton of rock (gallons/ton) or more and are 

25 feet thick or greater. In Wyoming, where the oil shale resource is not of as high a quality as it 

is in Colorado and Utah, the BLM determined that the most geologically prospective oil shale 

resources are those deposits that yield 15 gallons per ton or more shale oil and are 15 feet thick 

or greater. 

A detailed description of the geologic setting of and physical, biological, and socioeconomic 

resources within the Green River, Piceance, Uinta, and Washakie Basins as well as areas which 

are excluded based on a special designation is presented in Chapter 3 of the Final Oil Shale and 

Tar Sands Programmatic EIS (BLM 2013, pp. 3-1 – 3-334) and is hereby incorporated by 

reference. In addition, Chapter 3 of the Final 2013 Programmatic EIS presents the condition of 

the soils, water, air ecological, cultural, paleontological, visual resources, recreation, grazing,

and other mineral resource uses and socioeconomic situations associated with these geologically

prospective areas.

ENVIRONMENTAL EFFECTS 

Introduction 

This EA analyzes three alternatives. The purpose of this environmental effects analysis is to 

predict the degree to which the quality of the human environment is likely to be affected if a 

particular alternative is implemented. The proposed action and alternatives are very limited in 

scope; they set forth the procedural requirements and broad standards that must be met. For the 

most part, they do not bear on the site-specific impacts associated with oil shale exploration, 

development, and production activities once the oil shale is leased. To the extent that they may

bear on these impacts, it is not possible to meaningfully evaluate the effects of these standards. 

Regardless, under the proposed action or any of the alternatives, those impacts will be assessed

in the future in project-specific NEPA analyses associated with oil shale leasing and PODs that 

will be completed by BLM state or field offices, as required by NEPA. 

Alternative A: No Change to the Existing 2008 Commercial Oil Shale Regulations (No 

Action Alternative).

A predetermined royalty rate provides an element of predictability to entities contemplating oil 

shale leasing and development. The actual extent to which oil shale development might be 

encouraged by an operator’s ability to make more informed business decisions is likely

overshadowed by the numerous other unknowns associated with oil shale development, 

particularly while the industry is in its infancy. It is not practical to quantify the environmental 

effects of the royalty rate due to the emerging nature of oil shale technology and economics. 
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The existing 2008 regulations in some sections are not as specific in regards to the environmental 

requirements as the proposed action. Under the existing regulations at 43 CFR 3931.11, the 

BLM would require comprehensive well designs and procedures and a description of the 

following: methods and means to protect and monitor all aquifers; measurement and handling of 

produced fluids; methods used to dispose of and control mining waste; controls that the operator

will use to protect the public; measures to be taken to prevent or control fire, soil erosion, 

subsidence, pollution of surface and ground water, pollution of air, damage to fish or wildlife or 

other natural resources; a plan for reclamation for all Federal leases or exploration licenses; and a 

method to fill in, fence, or close all surface openings that are hazardous to people or animals. 

Before a lease, exploration license, or POD is issued, the BLM, in consultation with the 

appropriate affected parties, will conduct site-specific NEPA analyses, which may take the form 

of either an EIS or EA.

Alternative B: Revise 2008 Commercial Oil Shale Regulations (Proposed Action)

In the proposed action, the oil shale applicant would not have information on a royalty rate until 

the time of publication of a notice of sale or at the time of conversion of an R, D and D lease. 

The effect of this change would be to allow royalty rates to reflect current market conditions; 

however, it would also introduce uncertainty. The intent of the proposed removal of the royalty 

rates from the regulations is to allow rates to be set in the future when more information may be 

known about the costs and revenues of oil shale operations. Uncertainty in royalty rates, 

however, might discourage commercial oil shale development by requiring entities to make

business decisions with less information. If, however, a more economically favorable royalty 

rate than currently required was set by the BLM and the Secretary of Interior, oil shale 

development might be encouraged. The EPAct, Section 369(o), directs the agency to establish 

royalties and other payment for oil shale leases that: (1) encourage development of the oil shale 

and tar sands resources; and (2) ensure a fair return to the United States. Other than being one 

factor for a business entity to consider in deciding whether to seek or develop a commercial oil 

shale lease, royalties are merely transfer payments, with no environmental impact that can be 

analyzed for this rulemaking. 

In the proposed action, a commercial lease would be awarded, an R, D and D lease would be 

converted to a commercial lease, and a POD would be approved if operations could proceed 

without unacceptable environmental risk. This rulemaking does not itself require the BLM to 

conduct a quantitative risk assessment. The rulemaking does require that the proponent show

that unacceptable risk would not occur before the BLM would approve a proposal and that the 

BLM may impose stipulations or conditions to mitigate adverse risks to an acceptable level.

The proposed action would require PODs to include a watershed and groundwater protection 

plan, an airshed review, an integrated waste management plan, and an environmental protection 

plan. The additional information and planning would augment the disclosure and performance 

standards in the existing regulations, and potentially benefit their effect on these resources, both 

natural and cultural. Furthermore, even in the absence of the amendments proposed in 

Alternative B, in most if not all cases, the additional information would be necessary for 

preparation of an analysis required by NEPA, and thus would be demanded from the operator 
17

pursuant to 43 CFR 3931.11(k). The explicit requirements for additional information in 

Alternative B would thus have no significant impact on the quality of the human environment.

Alternative C: In the proposed revised regulations at 43 CFR 3925.10 (a), 3926.10(c)(7), 

and 3931.10(e), replace the term “unacceptable environmental risk” with the term 

“unacceptable environmental consequences.”

This alternative would substitute the standard of “unacceptable environmental consequences” for 

“unacceptable environmental risk.” 

While there are numerous definitions for the word “risk,” they all, in one way or another, 

incorporate a focus upon uncertainty. One definition of risk states that it is the potential that a 

chosen action or activity will lead to an undesirable outcome. Another definition is that risk is 

the effect of uncertainty on objectives. Uncertainties include events which may or may not 

happen. Uncertainties may be caused by a lack of information or ambiguity. Since risk carries 

so many different meanings, there are many methods used to attempt to assess or to measure risk. 

These methods include statistical theory and lead naturally to statistical estimates, but others are 

more subjective. Environmental risk is not easily or reliably quantified or qualified in the 

context of a complex operation to develop natural resources, such as oil shale. The actual or 

potential risk posed by oil shale operations at a specific location requires interpretation by both 

the field scientists and by the Federal agency decision-maker. With no history of commercial oil 

shale operations on BLM-administered land, even a qualitative risk assessment would be an 

exercise of the BLM’s judgment.

The “consequences” standard would not be construed to require a detailed or quantitative risk

analysis. Rather, it would provide a standard based on the environmental consequences of the 

leasing or POD proposal. A consequence can be defined as a result or outcome. Environmental 

consequences, environmental effects, and environmental impacts are synonymous terms when 

used to describe environmental outcomes in the NEPA process, and, at least in the context of 

NEPA, refer to that which is either directly or indirectly caused by a proposed action, and is 

reasonably foreseeable from the standpoint of the Federal agency decision-maker faced with a 

decision to be made about a proposed action. An understanding of the environmental 

consequences of a proposed action assists the public officials that make decisions regarding the 

proposed Federal actions. Federal agencies, including the BLM, have used the NEPA process to 

evaluate and disclose environmental consequences in terms of reasonable foreseeability for over 

40 years and a well-established regulatory framework guides the process. The BLM has both a 

formal NEPA policy and a NEPA handbook (H-1790-1), outlining the procedures necessary to 

evaluate the environmental consequences of a project. NEPA, however, is procedural. It 

requires analysis and disclosure of environmental impacts, but it does not set a standard for either 

environmental risk or consequences for Federal decision-making.

In contrast, either the “unacceptable environmental risk” or the “unacceptable environmental 

consequences” standard would be a substantive standard that would apply to the BLM’s decision 

making for oil shale leases and PODs. 

If the BLM were to adopt the “unacceptable environmental consequences” standard, it might also 

interpret “environmental consequences” consistent with the way this term is used in the NEPA 
18

process, to include effects that are reasonably foreseeable. Neither “unacceptable environmental 

risk” nor “unacceptable environmental consequences” could be any less exacting a standard than 

that enunciated in the Federal Land Policy and Management Act (FLPMA) of 1976, as amended: 

“In managing the public lands the Secretary shall, by regulation or otherwise, take any action 

necessary to prevent unnecessary or undue degradation of the lands” (43 U.S.C. 1732(b)). 

Although “unacceptable environmental risk” might be considered to be more protective of the 

public lands than “unacceptable environmental consequences,” it is not possible to compare the 

effects of those standards for the following reasons: a quantitative risk analysis is unlikely to be 

feasible or meaningful in the oil shale context; and if the “environmental consequences” is 

interpreted to include reasonably foreseeable effects, it should lead to qualitative consideration of 

the same types of potential impacts as an “environmental risk” standard. 

DIRECT, INDIRECT, AND CUMULATIVE EFFECTS

The rulemaking neither makes leasing and development of oil shale on public lands possible, nor 

does it foreclose the Secretary of the Interior’s discretion to decide whether, when, or where to 

issue oil shale leases. The proposal to set royalty rates at future times, though on its face 

environmentally neutral, might be a factor that encourages or discourages development. It is not 

possible, however, to analyze its direct, indirect, or cumulative effects. The proposals to set an 

environmental standard for issuing leases and approving PODs and to require additional 

environmental information and mitigation planning are anticipated to be beneficial to the 

environment, but it is not possible to analyze their direct, indirect, or cumulative effects. For the 

same reasons, it is also not possible to analyze the direct, indirect, or cumulative effects of the 

alternatives to the proposal.

This EA does not analyze future oil shale leasing or development proposals. All such proposals 

will be analyzed in compliance with NEPA, including appropriate analysis of direct, indirect, and 

cumulative effects based on the information available at that time.

AGENCIES CONSULTED

The authors of this EA consulted with the Washington Office BLM staff, the Colorado State 

Office BLM staff, and the Office of the Solicitor.

LIST OF PREPARERS

Larry P. Jackson, Division of Solid Minerals, Washington Office, BLM.

Paul McNutt, Division of Solid Minerals, Washington Office, BLM.
19

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