Timeline for Abound Solar cleanup still clouded

LONGMONT – A costly cleanup of bankrupt Abound Solar Inc.’s toxic manufacturing facility in Longmont remains in limbo, more than four months after a preliminary settlement agreement was reached.

The Abound Solar bankruptcy trustee and the solar-panel manufacturer’s insurer, Chubb Group of Insurance Cos., agreed in January that Chubb should pay $2.2 million to Abound Solar’s bankruptcy estate to settle an insurance claim for a cleanup of the building owned by W.W. Reynolds Cos. Inc. in Boulder.

But the agreement has not been finalized, according to court documents filed in U.S. Bankruptcy Court in the District of Delaware, and the polluted building remains unoccupied. Once it is approved, the agreement would bar permanently additional claims against Chubb in the matter.

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Why the settlement has stalled again, leaving a dangerously contaminated site to languish, isn’t clear. Parties to the settlement declined to comment.

The 130,000-square-foot building, at 9586 E. Interstate 25 Frontage Road in Longmont, was occupied by Abound Solar from 2008 through 2012 and has remained vacant since the company failed. The policy issued by Chubb ran from March 2011 to March 2014, promising to cover as much as $6 million for pollution incidents at seven Abound locations, including buildings in Loveland, Fort Collins, Denver and Tipton, Ind., including a $25,000 deductible.

Local government officials and the building’s owner have tried to compel Abound Solar’s bankruptcy trustee, Wilmington, Del.-based Joeffrey Burtch, to clean the building, contaminated with the metal cadmium, which can cause cancer.

Weld County Commissioner Sean Conway has remained interested in seeing a cleanup. The facility represents one of the few locations available in the county’s tight commercial industrial real estate market, he said.

“As of yet, we are not privy to any (cleanup) plan, and there certainly hasn’t been anything filed through the court as part of the bankruptcy proceeding,” Conway said. “We’re looking forward to closing this chapter; unfortunately it’s been a costly chapter to all the entities involved.”

Last August, 9586 LLC, formed by Bill Reynolds, owner of W.W. Reynolds, sued Chubb, alleging that the company wrongly denied a claim to pay cleanup costs. W.W. Reynolds contends that sampling and analysis show that hazardous waste on the property poses a human health risk. Chubb initially denied coverage.

Reynolds’ company threatened to sue the Department of Energy and Burtch. In December, the groups tried to resolve the situation during a two-day mediation session, which led to the proposed $2.2 million agreement. The cost and delays in the cleanup were first reported by BizWest last October.

The agreement centers on an argument by Burtch that further litigation in the dispute would be complex, expensive and pose significant risk to Abound Solar’s bankruptcy estate and creditors.

Neither Reynolds nor his attorney, Giovanni Ruscitti of Boulder, returned phone messages seeking comment.

The insurance settlement negotiations come nearly two years after Loveland-based Abound Solar’s highly publicized Chapter 7 bankruptcy in July 2012. The collapse led to the layoffs of 125 people, on top of the 280 employees the company had laid off earlier in the year, and the closure of its facilities in Larimer and Weld counties.

The Department of Energy backed Abound Solar with a $400 million loan guarantee. Abound had drawn down almost $70 million on the loan. Taxpayers will lose from $40 million to $60 million.

Abound Solar’s panels, coated with cadmium-tellurium thin-film technology developed at Colorado State University, were touted as producing electricity more efficiently than cheaper, crystalline silicon panels manufactured by the Chinese.

But the company had a history of defective solar panels, equipment problems and repeatedly missed revenue and production goals. Abound Solar also faced stiff competition from the Chinese solar-panel manufacturers, who received subsidies from China’s government.

Beyond hazardous waste left in the Longmont facility, Abound Solar left contaminated solar panels deemed hazardous and unsellable in a Denver warehouse, although many of the panels went to First Solar Inc. (Nasdaq: FSLR) in Tempe, Ariz., which reached a deal with Burtch to recycle glass panels at its recycling facility in Perrysburg, Ohio, and to use Abound’s leftover processed cadmium and tellurium for its own solar panels.

The Colorado Department of Public Health and Environment, meanwhile, has ordered Burtch to clean the building. Some of the building was cleaned in February 2013, but much of the contamination remained after state inspectors revisited the building in November.

A Jan. 28 order issued by the public health department says Burtch had two months to develop a cleanup plan or face fines. Administrative Law Judge Keith Kirchubel put a temporary stop to the state’s order April 8. The state has appealed the decision.

Spokespeople from the U.S. Department of Energy, Colorado Department of Public Health and Environment and Chubb declined to comment. A spokeswoman for the state Attorney General’s office, which is representing the public health department in the case, said she could not comment on pending legal matters.

Burtch and his attorney, Adam Singer, did not respond to requests for comment.

U.S. Rep. Cory Gardner, R-Colo., said he hopes the groups will reach agreement to fund the building’s cleanup. Gardner and other members of the House Energy and Commerce Committee have investigated Abound Solar and the energy department’s loan guarantee program.

“Abound left more than just the U.S. taxpayers on the hook,” Gardner said.

Steve Lynn can be reached at 970-232-3147 or slynn@bizwestmedia.com. Follow Lynn on Twitter at
@SteveLynnBW.