A BUSINESSMAN CONVICTED of dumping toxic chemicals into the Louisville sewer system was reported in yesterday's paper to have been sentenced to prison and fined $50,000. That may be justice, but it's not remedy. Read further in the story and you find that dealing with the effects of the dumping has already cost the taxpayers $3 million. That gets to a basic question about cleaning up these toxic and hazardous wastes: who pays?

Plenty of money is involved in this debate. It has been estimated that there are in the neighborhood of 30,000 hazardous waste disposal sites in this country, with "significant amounts" in about 800 of them. The cost of cleaning up is likely to run into the billions (and this does not include the costs of compensating those who have been harmed). The administration's answer to the question has been to propose the creation of "Superfund," paid for by industry via fees on oil and chemical feedstocks. Their reasoning is that those who benefitted from the enterprises that produced the harmful side effects should pay.

The trouble is that this approach makes no distinction between companies that are careful with their waste and those that are careless or even grossly negligent. Consequently, it removes much of the incentive to improve. If you've already paid once (into the fund), it's hardly good business to pay twice by, for example, redesigning your process so it generates less wate. Thus Superfund violates the tenent that regulations should be designed to encourage a higher standard of care: to prevent damage, not to punish.

The industry argues -- to the surprise of no one -- that the cost of Superfund should be borne entirely by federal and state governments. Leaking waste sites are a problem for all of society, they say, and responsibility for them should be "shared." Furthermore (the industry's argument goes) it is unfair to blame an industry today for practices that in the past were not forbidden. But this ignores the fact that many (perhaps most) of the companies doing business today contributed to the problem society now faces, and in doing so reaped a hefty financial reward.It also fails to take into account that for some time only various industries knew their practices were endangering the public, and they were not exactly famous, without a lot of pressure and inquiry, for volunteering such information to a responsible government agency.

Behind these ethical and legal considerations lies a reality: regardless of which of these equally flawed approaches you favor, the cost will find its way to the same pocketbook -- the consumer's. For if industry pays the fee, it will simply pass the cost through to its customers, while if government pays for the fund, it is the taxpayer who gets hit. And chemical products are so widely used throughout the economy that the class "taxpayer" and the class "consumer" are virtually identical.

Congress, now considering the Superfund idea, would be way ahead of the game if it made this assumption the center of its consideration. Since we all know who is ultimately going to pay, in other words, the object should be to work out a fund and a mechanism for supporting it that will not as a result of exacting payment from the polluters automatically also discourage them from cleaning up their act.