NEW ORLEANS - BP and the U.S. government have agreed that 34 million gallons (128.7 million litres) of oil captured during the massive 2010 spill in the Gulf of Mexico can't count toward civil penalties the oil giant faces.

The agreement is contained in a court filing Tuesday. It came in response to BP's argument that workers either burned the collected oil or shipped it to shore before it could enter the Gulf waters and that it shouldn't count in calculating the company's Clean Water Act penalties. The penalties will be in the billions of dollars.

The first phase of a trial is scheduled to start Feb. 25. It is designed to determine the causes of BP's well blowout and assign percentages of fault to the companies involved in the drilling project that went wrong.

The second phase will address efforts to stop the flow of oil from the well.

U.S. District Judge Carl Barbier noted Tuesday that neither party shall dispute the number of gallons (litres) collected "during Phase Two or later phases of this civil action."

A criminal settlement with the Justice Department in November didn't resolve the government's civil claims against BP.

A team of scientists working for the government estimated that more than 200 million gallons (757 million litres) of oil spewed from BP's blown-out Macondo well from April to July 2010. That estimate included oil that was collected.

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