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BP was grossly negligent in the Deepwater Horizon explosion and subsequent 2010 Gulf of Mexico oil spill that left 11 workers dead, the Department of Justice (DoJ) is saying.

Among the condemnations, DoJ’s attorneys assert the behavior of BP executives in the days leading up to the disaster “would not be tolerated in a middling size company manufacturing dry goods for sale in a suburban mall.”

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The DoJ filed its 39-page brief in U.S. District Court in Louisiana where BP is in the process of settling the civil damages case brought by a giant group of fishermen, hoteliers and citizens damaged by the spill.

The government attorneys start by saying they didn’t intend to file any kind of commentary on the pending settlement, but felt moved to do so by BP’s “plainly misleading representations” concerning the extent of its liability and the extent of environmental damages.

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The brief criticizes BP for, among other things, downplaying the plight of sick dolphins in Barataria Bay, LA, and of dead and dying deep-sea corals. More importantly, it said BP was overreaching in its civil proceedings by trying to make the case before the district court it had not committed gross negligence.

The DoJ encouraged the court overseeing the civil settlement not to draw any conclusions of law that could complicate the government’s future case against the oil giant, the first phase of which is set for January 2013. In that case, states the brief, “The United States intends to prove gross negligence or willful misconduct.”

For BP and its shareholders an ultimate finding of gross negligence would be enormous because it would quadruple the base damages BP would have to pay under the federal Clean Water Act. The CWA holds that each barrel spilled (and not captured) is subject to a fine of $1,100 — if the spill is accidental. If a court finds the spill was via gross negligence the fine rises to $4,300 per barrel. Applied to the roughly 4.9 million barrels believed to have spilled from Macondo, that’s the difference between $5.5 billion and $21 billion.

The brief lays out an abridged version of the government’s case for a gross negligence finding. They start with some embarrassing emails between John Guide, the BP engineer responsible for the ill-fated Macondo well, and David Sims, his boss. Guide explained in one email that Macondo was a very difficult well, that the drilling crew was “flying by the seat of our pants” under a “huge level of paranoia” that was “driving chaos.” Guide said “the operation is not going to succeed if we continue in this manner.”

Guide’s email was “a clarion cry of impending disaster,” the DoJ attorneys wrote, who question why BP’s internal investigators didn’t make any reference to it in their report on the events leading up to the disaster.

DoJ said BP purposefully ignored any lessons learned from the 2005 Texas City refinery explosion that killed 15. They criticize David Sims for not following up on Guide’s warnings. They criticize Sims for meeting with Robert Kaluza (another of BP’s leaders on the Deepwater Horizon rig) just hours before the explosion, yet not even asking Kaluza what about the operation was so stressing him out.

BP had sent out 15 extra “centralizers” to go in the well to complete the well cementing, but Guide then ordered workers not to use those centralizers. In a cavalier email quoted in the brief, Guide said, “But, who cares, it’s done, end of story. Will probably be fine.”

The brief reserves its greatest criticisms for the “negative pressure test” that was the last work conducted on the well.

The test is relatively simple, but to simplify it further, think of it this way: Before the Deepwater Horizon could finish its job and disconnect from the well the drillers needed to make sure the cement job had been done right and the well was in stasis, that is, there should be no oil or gas flowing through it. If the well is trying to flow, it will show up in pressure gauges on the rig. A negative pressure test isn’t successful unless there’s no pressure reading at all. But at the Macondo test, sensors did show a pressure anomaly from the well. Despite acknowledging the pressure reading and agreeing it was worrisome, BP’s supervisors Don Vidrine and Mark Hafle waivered.

The DoJ asserts it should have been a no-brainer for BP to run the test again, but they didn’t. Ordering a retest would have begun with the closing of the rig’s blowout preventer, which would have stopped the flow before the blowout.

BP has said in recent months that it hopes to settle with the government the question of negligence and the amount of fines without going to trial. The company believes at least some of the billions it has spent to clean up the mess should go to offset fines. BP considers the clean up efforts largely complete. But the DoJ challenges this too.

“The fact that a section of shoreline is no longer considered suitable for response action does not mean that it is not suffering continuing injury from the Spill. For example, an important consideration in deciding on appropriate response action is whether a cleanup technique will cause more harm than good.”

The government’s message, BP is wrong to say the Gulf’s ecosystem has gone through a robust recovery — in reality there is far more damage than meets the eye, and more cleanup to be done.

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