author: KUHN, J.

text:
    Harry J. MILLEN, Jr. v. STATE of Louisiana DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2007 CA 0845.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.

      Alan J. Robert, Gonzales, Louisiana, for PlaintiffrAppellee, Harry J. Millen, Jr.,
    Michael C. Barron, Baton Rouge, Louisiana, for Defendani/Appellant, State of Louisiana Department of Public Safety and Corrections.
    Before PARRO, KUHN and DOWNING, JJ.
   KUHN, J.

|gThe Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles (“the Department”) appeals the district court’s judgment that recalled the suspension of Harry J. Millen, Jr.’s driving privileges. We reverse and reinstate the administrative law judge’s decision that upheld the Department’s suspension.

I. PROCEDURAL AND FACTUAL BACKGROUND

Based on an affidavit of arrest signed by the arresting officer; Mr. Millen was arrested on May 5, 2006, for a violation of La. R.S. 14:98, operating a vehicle while intoxicated. After being advised of his rights and the consequences of refusing to submit to a chemical test for blood alcohol, Mr. Millen refused to submit' to the test. Mr. Millen’s driver’s license was seized, and he was issued a temporary receipt of license in accordance with La. R.S. 32:667(A)(1).

Mr. Millen requested a hearing to challenge the Department’s proposed suspension of his driving privileges. During a July 24, 2006 administrative hearing, captioned Department of Public Safety and Corrections in the Matter of Harry J. Millien, Jr., Docket No. 2006-2488-PS, the Department introduced the arrest affidavit into evidence over Mr. Millen’s objection. Based on the arrest affidavit, the administrative law judge (“ALJ”) affirmed the Department’s proposed suspension of Mr. Millen’s driving privileges in a July 25, 2006 decision and order.

|sMr. Millen then filed a petition in the district court, seeking review of the final order of suspension. He challenged the suspension on the sole basis that the arrest affidavit had not been notarized in accordance with La. R.S. 35:12, which specifies various information that a notary must include in notarized documents.

During the district court hearing, the parties submitted the matter to the district court “on the record, along with evidence that we’ve offered today.” The parties stipulated to a list of items that were submitted as evidence. The Department introduced:

1) The arrest affidavit, which was signed by the arresting officer and notarized by “Sgt. M.L. Calamia.” The affidavit includes the notary’s name, both printed and signed, and the number “40771,” which appears after Sgt. Calamia’s signature.
2) An October 3, 2006 certification from the Louisiana Secretary of State, which certifies that “Manuel Lynn Calamia ID# 40771 is a valid Ex Offi-cio Notary Public for the Department of Public Safety.... [Calamia] was appointed and commissioned on September 15,1993.”
3) The ALJ’s July 25, 2006 decision and order.

Mr. Millen introduced a decision and order in an unrelated administrative proceeding, Department of Public Safety and Corrections in the Matter of Rodney Thomas, Docket No. 2006-0712-PS, wherein the ALJ recalled a proposed suspension of driving privileges based upon a finding that the arrest |4affidavit did not comport with the provisions of La. R.S. 35:12(B) and (C); the ALJ found it neither bore the notary identification number nor identified the person who notarized the document as either a notary or an ex-officio notary.

In the instant case, the district court ordered judgment in favor of Mr. Millen and against the Department, recalling the suspension of Mr. Millen’s driving privileges. The district court reasoned that the arrest affidavit “should not have been admitted” because the notary had not complied with La. R.S. 35:12(C), which requires an ex officio notary to “clearly indicate his actual position or title from which his authority to notarize is derived, in addition to his notary identification number.” The Department has appealed, asserting the district court erred in not considering the arrest affidavit and in recalling the suspension.

II. ANALYSIS

Part XIV of Chapter 3 of Title 32, of the Motor Vehicles and Traffic Regulation, of Louisiana’s Revised Statutes regulates “Tests for Suspected Drunken Drivers.” See La. R.S. 32:661 et seq. Any person operating a motor vehicle upon the public highways of the state are deemed to have consented to chemical testing for alcohol or drug usage if arrested for any offense arising out of acts alleged to have been committed while driving or in control of the vehicle. La. R.S. 32:661(A)(1). The tests shall be administered at the direction of a law enforcement officer “having reasonable grounds to believe the person ... to have been driving ... a motor vehicle upon the public highways ... while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance.... ” La. R.S. 32:661(A)(2)(a). When an officer requests that the person submit to a chemical test, he must follow certain ^procedures that include advising the driver that his driving privileges can be suspended for refusing to submit to the chemical test. La. R.S. 32:661(C).

Louisiana Revised Statutes 32:666(B) provides that if the motorist refuses to submit to the chemical test after being informed of the consequences of such refusal, the officer shall submit a sworn report stating that he had “reasonable grounds to believe that the arrested person had been driving or was in actual physical control of a motor vehicle upon public highways of this state while under the influence of alcoholic beverages or any abused or illegal controlled dangerous substance .... ” The consequences of such a refusal are the seizure of his license and subsequent automatic suspension for a period of time, unless the person requests an administrative hearing within 15 days. La. R.S. 32:666 and 667.

When the driver requests a hearing, the state must prove the officer had “reasonable grounds” to believe the person had been driving a motor vehicle upon the public highways while under the influence of alcohol, that the person was placed under arrest and advised by the officer as provided in La. R.S. 32:661, and that the driver refused to submit to the test on request (or that he voluntarily submitted to the chemical test and the blood alcohol reading was in excess of the statutory limit). See La. R.S. 32:668(A); Henry v. State, Dep’t of Public Safety, 01-0103, p. 2 (La.App. 3d Cir.6/27/01), 788 So.2d 1286, 1288. After departmental remedies have been exhausted, the driver has the right to file a petition for judicial review. See La. R.S. 32:668(C). On such review, the district court is required to conduct a trial de novo to determine the propriety of the suspension. Flynn v. State, Dep’t of Public Safety & Corr., 608 So.2d 994, 995-96 (La.1992). Such a trial is a civil action amenable to all of the ordinary rules of procedure and proof. Meyer v. State, Dep’t of Public Safety License Control and Driver Improvement Div., 312 So.2d 289, 292 (La.1975). Further, the fact that this is an action for judicial review of a decision resulting from an administrative hearing does not change the burden of proof placed by law on the plaintiff. Id.

In the instant case, however, Mr. Mil-len introduced no evidence challenging the propriety of his suspension other than a decision and order in an unrelated administrative proceeding. In support of its action, the Department introduced the arresting officer’s notarized affidavit. Pursuant to La. R.S. 32:666(B), the arresting officer is required to “submit a sworn report in a form approved by the secretary” establishing the reasonable grounds supporting his belief that the arrested person had been driving a vehicle while intoxicated. In the instant case, the arresting officer, Trooper D. Bergeron, used the approved form, which includes basic affidavit language and provides blanks to be filled in by the arresting officer to provide the details of the individual arrest. The form indicates that the arresting officer is to appear before a “notary or other person qualified to give oath” when providing his sworn statement.

Trooper Bergeron’s affidavit states that he appeared before Sgt. Calamia and, after being duly sworn, said that on May 5, 2006, at 2116 hours, Mr. Millen was arrested for “a violation of La. R.S. 14:98 ... while intoxicated.” |7The affidavit further states the arrest was made upon reasonable grounds to believe the offense had been committed by Mr. Millen based on the following information:

Subject turned left in front of [an Ascension Parish Sheriffs Office deputy vehicle] from LA 431 onto LA 934.... [Deputy] had to hit brakes hard to keep from hitting subject[’]s vehicle.

Upon coming into personal contact with Mr. Millen, Trooper Bergeron detected “[b]lood shot glassy eyes, slow slurred speech, [and that Mr. Millen was] unable to stand without holding onto side of truck.”

The district court determined that the ALJ had improperly considered the arresting officer’s affidavit because it did not comply with La. R.S. 35:12, which provides, in pertinent part, as follows:

A. (1) Notaries shall insert in their acts the Christian names and surnames of the parties in full and not their initial letters alone or the full names of the parties and not their initial letters alone, together with the permanent mailing addresses of the parties, and shall print or type the full names of the witnesses and of themselves under their respective signatures.
(2) For the purposes of this Section, a full name or a name in full shall include at least one given name and other initials in addition to the surname. It may be any combination of first name and middle initial or initials, if any, and the surname; or the first initial and at least one middle name and the surname; or the complete first and middle name or names and the surname. The notary shall type, print, or stamp his or her name as it appears on his or her commission.
B. Every document notarized in this state shall bear the notary identification number assigned by the secretary of state, except that if the notary is an attorney licensed to practice law in this state, he may use his Louisiana state bar roll number in lieu of his notary identification number. The number shall be typed or printed legibly and placed next to the typed, printed, or stamped name of the notary as required by Subsection A of this Section.
C. No person other than a regularly commissioned notary public shall use the title “Notary Public.” Every person, other than |sa regularly commissioned notary, who is otherwise given notarial powers or authorized as a notary ex officio, shall clearly indicate his actual position or title from which his authority to notarize is derived, in addition to his notary identification number.
D. (1) Any document notarized in this state on or after January 1, 2005, submitted for filing or recording in the office of notarial records, register of conveyances, or recorder of mortgages in and for the parish of Orleans, or in the office of any clerk of court or recorder of mortgages or conveyances may be refused by the clerk or his employee if the document fails to contain the notary identification or attorney bar roll number and the typed, printed, or stamped name of the notary and the witnesses. However, documents filed in the civil or criminal suit records of any court shall not be subject to the provisions of this Subsection.
(2) Except as otherwise provided in this Section, no state office, agency, department, or political subdivision shall accept, file, or record any document notarized in this state on or after January 1, 2005, unless the document contains the notary identification or attorney bar roll number and the typed, printed, or stamped name of the notary and the witnesses.

On appeal, Mr. Millen asserts the arrest affidavit does not comply with La. R.S. 35:12 because Sgt. Calamia, who notarized the form, did not: 1) insert either his full first or middle name in addition to his surname; 2) designate whether he is a notary or ex-officio notary; 3) identify the five numbers after his signature as either a bar roll number, notary number, or badge number; or 4) specify the parish and the length of his commission. Sgt. Calamia did not specify in his notarization of the arrest affidavit that he was an ex-officio notary. During the district court proceeding, however, the Department introduced a certificate from the Secretary of State, confirming that its records indicate that Sgt. Calamia is a valid ex-officio notary for the Department and Rthat he was appointed and commissioned as such on September 15, 1993. In contrast, we note that Mr. Millen did not introduce any evidence challenging Sgt. Calamia’s status as an ex-officio notary.

Although Mr. Millen argues that the affidavit in question is deficient because it does not specify the notary identification number, we find no merit in this argument because the number is clearly printed on the affidavit. Louisiana Revised Statutes 35:12(B) does not require the notary to specifically delineate the number as a notary identification number or differentiate it from an attorney bar roll number. Likewise, La. R.S. 35:12 does not specifically require the notary to specify the parish and the length of his commission, although it does require the notary to indicate his actual position or title from which his authority is derived. See La. R.S. 35:12(C).

A review of the affidavit, however, reveals that Sgt. Calamia did in fact fail to designate his ex-officio notary status, which would have indicated the title from which his authority to notarize is derived. Further, Sgt. Calamia also failed to include either his full first or middle name. However, although the affidavit does not comply with all of the requirements of La. R.S. 35:12, that deficiency does not invalidate the affidavit. See Hamilton v. Royal Intern. Petroleum Corp., 05-846, pp. 11-12 (La.2/22/06), 934 So.2d 25, 33, cert denied, — U.S.-, 127 S.Ct. 937, 166 L.Ed.2d 704 (2007); Succession of Adler, 334 So.2d 799, 800 (La.App. 4th Cir.1976); American Bank & Trust Co. v. Michael, 244 So.2d 882, 884 (La.App. 1st Cir.), writ not considered, 258 La. 368, 246 So.2d 685 (1971).

In the present case, La. R.S. 35:12(D) imposes the only applicable penalties should the notary fail to perform his' mandatory duties under Subsections (A), (B), and (C). See Hamilton, 05-846 at' p. 11, 934 So.2d at 33. Insofar as it is relevant to the facts of this case, Subsection (D)(1) provides that a clerk of court may refuse a notarized document if it fails to comply with the requirements of Subsections (A) and (B). This penalty provision, however, is not applicable to documents filed in a civil suit record of any court.

Louisiana Revised Statutes 35:12(D)(2) further states, “Except as otherwise provided in this Section, no state office, agency, department, or political subdivision shall accept, file, or record any document notarized in this state on or after January 1, 2005, unless the document contains the notary identification or attorney bar roll number and the typed, printed, or stamped name of the notary and witnesses.” We interpret the words, “Except as otherwise provided in this Section,” as referencing the exception in the previous paragraph for documents fried in the civil or criminal suit records of any court. InThus, we conclude that the' penalty provisions of Subsection (D) do not bar consideration of the affidavit in the present civil suit. Sgt. Calamia’s failure to include his full name and his failure to specify his ex-officio notary status does not invalidate the affidavit; La. R.S. 35:12 does not prescribe this penalty. Thus, under the facts of this case, the district court erred in not considering the affidavit in determining whether Mr. Millen’s suspension was warranted under La. R.S. 32:661 et seq.

We find the arresting affidavit sets forth sufficient facts establishing that Trooper Bergeron had reasonable grounds to believe that Mr. Millen had been driving while under the influence of alcohol, had been arrested, and had been advised by Trooper Bergeron as.to his rights before Mr. Millen refused to submit to the chemical test. See La. R.S. 32:668(A). Mr. Millen failed to introduce any countervailing evidence to support his claim that the suspension imposed by the Department was not warranted.

III. CONCLUSION

For these reasons, we reverse the district court’s judgment that recalled the suspension of Mr. Millen’s driving privileges. The ALJ’s decision upholding the Department’s suspension of Mr. Millen’s driving privileges is hereby reinstated, with such suspension to be administered in accordance with law by the Department. Appeal costs are assessed against Mr. Mil-len.

REVERSED; ADMINISTRATIVE LAW JUDGE DECISION REINSTATED.

      . Although our appeal record does not contain the administrative record or a transcription of this hearing, the parties acknowledged during oral arguments before this court that no testimony was adduced at the hearing and only the arrest affidavit was introduced into evidence.

      . The district court granted a temporary restraining order that prohibited the Department from suspending Mr. Millen’s driving privileges prior to the district court hearing.

      . An affidavit is generally inadmissible as hearsay, but hearsay evidence that is not objected to constitutes substantive evidence. See State v. Allen, 03-2418, p. 25 (La.6/29/05), 913 So.2d 788, 807, cert. denied, 547 U.S. 1132, 126 S.Ct. 2023, 164 L.Ed.2d 787 (2006); Bourque v. Bouillion, 95-909, p. 5 (La.App. 3d Cir. 10/18/95), 663 So.2d 491, 494. During the district court hearing, Mr, Millen did not raise any objection to the arrest affidavit being admitted into evidence; thus, it was properly considered as substantive evidence.

      . The court determined that the judicial review authorized by La. R.S. 32:668(C), which references La. R.S. 32:414, is a trial de novo. Although these statutes have been amended several times since Flynn was decided, the statutory language supporting the Flynn holding still remains intact. Accordingly, the district court is not restricted to a review of the ALJ's findings; the district court's judicial review can encompass the calling of witnesses, the taking of testimony and the introduction of evidence. Flynn, 608 So.2d at 997-98.

      . Various revised statutes authorize the appointment of ex-officio notaries to administer oaths or exercise any or all of the functions, powers, and authority of a notary insofar as they are related to and required for the operation of the office, agency, or department under which the authority is granted. La. R.S. 35:392.1 et seq. Pursuant to La. R.S. 35:393 and 393.1, the secretary of the Department is authorized to designate certain officers and appoint them as ex-officio notaries public. These ex-officio ’ notaries are authorized to perform specified acts, such as administering oaths and receiving sworn statements, without the necessity of giving bond. La. R.S. 35:392(A), 393(B), and 393.1(B) and (C). Separation from the employ of the Department terminates the powers of the ex-officio notary public. See La. R.S. 35:392.1(A) and 393.1(D).

      . In reversing the annulment of a tax sale based upon the tax collector's failure to provide a post-tax sale notice to the taxpayer as required by La. R.S. 47:2180, the Hamilton court determined the statute did not provide any penalty or remedy upon the tax collector’s failure to perform this mandatory duty. The court reasoned, in part, "We are not unmindful that the word "shall”, for purposes of statutory construction, denotes a mandatory duty.... However statutes classified as mandatory prescribe, in addition to requiring the doing of the thing specified, the result that will follow if they are not done.... [I]t is not the function of the judicial branch in a civilian legal system to legislate by inserting penalty provisions into statutes where the legislature has chosen not to do so.” Hamilton, 05-846 at p. 11, 934 So.2d at 33.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Edgar J. DUHON, III, Cyd Marie Duhon, and on behalf of his minor Children, Tyler Duhon and Kayla Duhon v. UNITED PACIFIC INSURANCE COMPANY, R & B Falcon Drilling USA, Inc. and Curtis Bailey.
    No. 2007 CA 0836.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.
    Writ Denied March 14, 2008.

      E. James Gaidry, Jr., Houma, LA, for Plaintiffs-Appellants, Edgar J. Duhon, III, et al.
    Michael E. Parker, Allen & Gooch, Lafayette, LA, for Defendant-Appellee, Louisiana Insurance Guaranty Assoc.
    Before PARRO, KUHN, and DOWNING, JJ.
   PARRO, J.

|gThe plaintiff appeals a summary judgment that dismissed his claims against the Louisiana Insurance Guaranty Association (LIGA) based on a finding that the holder of the insurance policy of an insolvent insurer had a net worth in excess of $25 million. For the following reasons, we reverse and remand.

Facts and Procedural History

While operating his vehicle on July 10, 2000, Edgar J. Duhon, III (Duhon), a resident of Louisiana, was involved in an accident with a vehicle driven by Curtis Bailey (Bailey) and owned by his employer, R & B Falcon Drilling USA, Inc. (R & B). Although Bailey was driving R & B’s vehicle with permission and was, therefore, an omnibus insured under R & B’s policy of liability insurance, he was not in the course and scope of his employment for R & B. R & B had liability insurance with United Pacific Insurance Company (one of the Reliance Insurance Company affiliates). Duhon filed suit against multiple defendants, including Bailey and United Pacific. Subsequently, on October 3, 2001, Reliance was placed in liquidation, and LIGA was substituted as a defendant. Duhon settled his claims against all defendants except Bailey and LIGA.

LIGA filed a motion for summary judgment urging the applicability of the net worth exclusion under LSA-R.S. 22:1379(3)(f). Following a hearing on LIGA’s motion, the trial court found that Duhon’s claim was excluded under LSA-R.S. 22:1379(3)(f), because R & B, also an insured under the United Pacific policy, was worth in excess of $25 million. LIGAS motion for summary judgment was granted, and Duhon’s claims against LIGA were dismissed. Duhon appealed, contending the trial court legally erred by failing to interpret LSA-R.S. 22:1379(3)(f) as excluding from the definition of “covered claim” only a claim for coverage by each individual insured whose net worth exceeds $25 million.

Discussion

For purposes of the Insurance Guaranty Association Law, a covered claim means:

| o.an unpaid claim, including one for unearned premiums by or against the insured or agent, which arises .out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Part applies issued by an insurer, if such insurer becomes an insolvent insurer after September 1, 1970, and:
(i) The claimant or insured is a resident of this state at the time of the insured event; or
(ii) The property from which the claim arises is permanently located in this state.

LSA-R.S. 22:1379(3)(a). In subpara-graphs 3(b) through (f) of this section, certain types of claims are excluded from the term “covered claim.” Of importance in this case is LSA-R.S. 22:1379(3)(f) which currently provides:

(f) “Covered claim” shall not include any claim asserted for coverage under a policy held by any insured whose net worth exceeds twenty-five million dollars on December thirty-first of the year immediately preceding the date of the determination of the insolvency of the insurer. However, an insured’s net worth on such date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis. An “affiliate” of the insured includes any person or entity who directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the insured. “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the controlled person or entity, whether through the ownership of voting securities, by contract, or otherwise. The consolidated net worth of the insured and all of its subsidiaries and affiliates shall be calculated on the basis of their fair market values. The failure or refusal of a person or entity to return a net worth affidavit to the association after two requests therefor shall create a rebuttable presumption that the noncompliant person or entity had a net worth in excess of twenty-five million dollars on December thirty-first of the year immediately preceding the date of the determination of the insolvency of the insurer. An insured for the purposes of this provision shall not include any state or local governmental agency or subdivision thereof. [Emphasis and footnote added.]

However, prior to its revision by 2004 La. Acts, No. 109, § 1, LSA-R.S. 22:1379(3)® provided:

(f) “Covered claim” shall not include any claim by any insured whose net worth exceeds twenty-five million dollars on December thirty-first of the year immediately preceding the date of the determination of the insolvency of the insurer. However, an insured’s net worth on such date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis. An insured for the purposes of this provision shall not include any |4state or local governmental agency or subdivision thereof. [Emphasis added.]

The applicable law governing claims against LIGA is the law in effect on the date of the insurer’s insolvency. Hopkins v. Howard, 05-0732 (La.App. 4th Cir.4/5/06), 930 So.2d 999, 1002 n. 3, writ denied, 06-1047 (La.6/23/06), 930 So.2d 984; see Prejean v. Dixie Lloyds Ins. Co., 94-2979 (La.9/15/95), 660 So.2d 836, 837 (on reh’g). The reason for this is that the claim against LIGA does not accrue until the insurer is declared insolvent. Hopkins, 930 So.2d at 1002 n. 3.

The parties do not dispute that Reliance was declared insolvent in 2001. Therefore, the pre-2004 version governs in this case. To not be a covered claim for purposes of the applicable version of LSA-R.S. 22:1379(3)(f), the claim must be one filed by an insured. In this case, it is the victim, Duhon, who filed a claim against the insurer of the owner of the vehicle and an omnibus insured under the policy. Since this suit does not involve a “claim by any insured,” the statutory exclusion found in LSA-R.S. 22:1379(3)(f) is inapplicable. Accordingly, we conclude that the trial court legally erred in apparently applying the current version of LSA-R.S. 22:1379(3)(f) to find that Duhon’s claim against LIGA was excluded.

Decree

For the foregoing reasons, the judgment of the trial court is reversed. This matter is remanded for further proceedings. Costs of this appeal in the amount of $1,012.64 are assessed against Louisiana Insurance Guaranty Association.

REVERSED AND REMANDED.

      . Under these facts, it appears R & B had no vicarious liability as a result of any negligence by Bailey.

      . For purposes of our discussion, we note that the language "asserted for coverage under a policy held” was added by a 2004 amendment. See 2004 La. Acts, No. 109, § 1. We conclude this particular amendment constitutes a substantive change in this provision and cannot be given retroactive effect. See LSA-C.C. art. 6.

      . See LSA-R.S. 22:655.

      . We note that LSA-R.S. 22:1376 sets forth the purpose of the Insurance Guaranty Association Law in pertinent part, as follows:
      The purpose of this Part is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer.... [Emphasis added.]


author: MARION F. EDWARDS, Judge..

text:
    STATE of Louisiana v. Brandon A. VINCENT.
    No. 07-KA-239.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Roger W. Jordan, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plain-tifflAppellee.
    Juan C. Labadie, Attorney at Law, Gret-na, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge..

12Pefendant/appellant, Brandon A. Vincent (“Vincent”), appeals his conviction of two counts of oral sexual battery of two different juveniles in violation of LSA-R.S. 14:43.3. Following his conviction, Vincent was sentenced to eight years on each count to run concurrently with each other. We affirm the convictions and remand with instructions.

The juvenile victim, M, testified at trial that, in 2003, she spent weekends at the home of her aunt, Helen, and that Vincent, her cousin, began living there. During those visits, M performed oral sex on Vincent approximately ten times, beginning in the summer of 2003, before she started fifth grade when she was twelve years old. Vincent was eighteen at the time. M testified- that the incidents continued to occur during her fifth-grade year.

laM described the first incident as follows: she was sitting in the front room watching television when Vincent asked her to “come here,” into his room. When she complied, he asked her to give him a “blow job.” M testified that he sat down and took his penis out of his pants, and that she then got on her knees and put his penis in her mouth for five or ten minutes. M indicated that her aunt was not there at the time.

Later on, M asked Vincent if he would introduce her to his girlfriend’s brother, Michael, and: he - said he would. Prior to each incident, Vincent would say, “If you give me a blow job I’ll hook you up with Michael.”

M testified that her aunt was never home during these incidents except one time. On that occasion, M’s aunt was sitting in the kitchen drinking coffee when Vincent called M to come into his room, asking for a “blow job” and promising an introduction to Michael. All except one incident, which occurred in the front room, took place in Vincent’s bedroom.

M said that the last time a similar incident occurred with Vincent was at her own house when Vincent came over and her family was not at home. He again asked her to give him a “blow job,” and she did. Afterwards, M stopped going to her aunt’s house because she did not want the incidents to happen anymore. She explained that the incidents made her feel like “nothing” and “worthless,” and she blamed herself for them at the time. M finally told Shannon, a counselor at school, about the events because she kept having nightmares. M also told Shannon that a similar incident happened to her friend, F. M stated that she and F went to Helen’s house to ask Helen if M could spend the night at F’s home. M and F were sitting on the sofa in the front room when Vincent came in and pulled F into his bedroom, locking the door. M started banging on the door trying to get in. She looked pthrough a hole in the door and saw that Vincent had F “pinned” to the ground. M finally gave up and went and sat down on the sofa and watched television.

M explained that F eventually came out of the room and told her what happened. M then told F what Vincent had done to her, and the girls promised each other at that time that they would never tell anybody what had happened. F was upset and didn’t want her family to find out what had happened.

M then testified that, on another occasion, she and F were at her aunt’s house when Vincent called F into his bedroom. She came out a few minutes later and said that Vincent wanted M. M went into the bedroom, and Vincent asked her for another “blow.”

F testified that in August of 2003, she and M went to Helen’s house to see if M could spend the night at F’s house. Helen told them to wait because she had to go to the store to pick up her sister. After Helen left, F was sitting on the sofa in the living room watching television, and M was in Vincent’s room. F testified that Vincent then came into the room and asked her to come into his room. F refused, so Vincent pulled her into the bedroom, pushing M out. Vincent locked the door, and M started banging on the door and cursing. At first, F thought Vincent was “playing,” but when she asked to leave, he refused. Vincent then asked her if she wanted to “suck his d... ” and she said “no.” After she refused, he got on top of her and put his penis into her mouth, put his hand on top of her head and moved her head back and forth. When Helen returned home, Vincent stopped and F got up, pushing F out the door and telling her not to tell anyone or “something else might happen.” F was scared during the incident and noted that Vincent had pictures of nude women on his wall.

Shannon Cumming, a teacher and school “prevention specialist,” testified that M confided to her that her eighteen-year-old cousin was making her give him |B“blow jobs.” M told her it happened when her aunt left the house, and that it had also happened to one of her friends, F. M appeared to be very upset and embarrassed.

Dr. Scott Benton (“Dr. Benton”), who was qualified as an expert in the field of forensic pediatric medicine, testified that Dr. Marymer Perales (“Dr. Perales”), his senior fellow, interviewed and examined M on February 20, 2004. The interview was taped. Dr. Benton testified that there were no physical findings, which was not inconsistent with the history M gave of penile-oral penetration. The delay in reporting the incident was not unusual.

Dr. Ellie Wetsman (“Dr. Wetsman”), who was qualified as an expert in the field of pediatric forensic medicine, testified that she interviewed F on April 28, 2004. Dr. Wetsman also examined F that day, but there were no physical findings. F related that Vincent pulled her into his room and made her put her mouth on his private area. Vincent told her not to tell anybody or something else might happen, “probably kill me or rape me.” She explained that findings were not expected, since the incident had occurred the prevh ous August. She testified that it was common for children to delay reporting incidents of abuse for many reasons: the child does not know the incidents are wrong, the child is ashamed or embarrassed, the perpetrator tells the child that it is the child’s fault and the child is to blame and that the child will be punished, or the perpetrator may bribe the child not to tell or threaten them.

Omalee Gordon (“Gordon”) testified that she was employed by the Gretna Police Department and assigned to the Jefferson Children’s Advocacy Center as a forensic interviewer. Gordon interviewed both victims, and both interviews were taped and played for the jury.

| gAfter the State rested, the defense called Helen as a witness. Helen testified that she recalled the time M and F came over in August of 2003 to ask if M could spend the night at F’s house. Helen insisted that Vincent was not there when M and F got there, and she did not recall his being there at all that day. Helen also insisted that there never was a time when she left M and F alone to run errands, and that she never left M alone at her house, as she did not believe in leaving kids under 16 years of age on their own. However, she admitted that Vincent was at her house one time when M and F were there.

Shelly, the girlfriend of M’s brother, testified that, soon after everything came out, she overheard M, telling her mother, stepfather,, and brother that she was lying, but could not change her story now and would not anyway. Shelly also overheard something regarding the district attorney, Vincent, and a meeting. Shelly testified that she did not come forward sooner because she did not want anybody to “hate” her, and she did not want to hurt anybody. She then stated that Vincent’s mother had asked her to come to court and testify.

On appeal, Vincent first argues that certain portions of the record are missing, and he is, thus, deprived of his constitutional right of.appeal. He contends that argument of counsel was omitted from the transcript of a hearing on the State’s Motion in Limine, which argument involved a crucial part of his defense, thereby causing him prejudice. According to Vincent, the lack of this portion of the transcript prevented him from effectively challenging the ruling on the Motion in Limine. Vincent also contends that he was prejudiced because a bench conference held during defense counsel’s opening statement was missing from the record. While Vincent also notes that voir dire was not transcribed, he does not allege any specific prejudice as a result of that omission.

|7La. Const, art. I, § 19 guarantees defendants a right of appeal “based upon a complete record of all the evidence upon which the judgment is based.” LSA-C.Cr.P. art. 843 requires the recordation of all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

Although the Louisiana Supreme Court has found reversible error when material portions of the trial record were unavailable or incomplete, “[a] slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal [will] not cause ...” reversal of a defendant’s conviction. An incomplete record may be adequate for appellate review. While material omissions from the proceeding bearing on the merits of the appeal require reversal, a defendant will not be entitled to relief on the basis of an incomplete record absent a showing that he was prejudiced by the missing portions of the record. The determination of whether the omissions are material must be made on a case by case basis.

Vincent argues that the evidence was legally insufficient to support the verdicts because the trial testimony was conflicting and contradicting. He contends that the most glaring and irreconcilable contradiction in the testimony was the victims’ accounts of the sexual assault that took place at Helen’s house when both victims were there. Vincent’s argument addresses the credibility of the victims. Vincent is correct in that there were some inconsistencies in their testimony. The trial court noted this in denying a Motion for New Trial but found |sthat the victims were very young and that juries “don’t hold them to the accountability of being perfect.”

There are some inconsistencies in the testimony. For example, F testified that the sexual battery took place once; M stated that it happened to F twice. M’s version of the sequence of events differed from F’s. In her recorded statement, F stated that M was in the room with Vincent first, then he pushed her out. F testified that she was in Vincent’s bedroom on that occasion for thirty minutes; however, M thought that F was in there five or ten minutes. F testified that Helen came home while she was still with Vincent; M testified that Vincent called her into the room after he was finished with F. M testified that she and F had spent the night at Helen’s house on that occasion, but F testified that, after the incident, she and M walked to F’s house that evening.

It is well established that the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the state fails to introduce physical evidence to substantiate the commission of the offense. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency, and the credibility of witnesses will not be reweighed on appeal. “[T]he Jackson standard does not serve as a vehicle for a reviewing court to second-guess the rational credibility determinations of the fact finder at trial.”

| flFurthermore,

[w]hen a witness is impeached, this simply means the jury, as the trier of fact, is presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior inconsistent statements does not mean that the jury is prohibited from believing anything said by the witness. The inconsistencies in the witness’s statements are one of any number of factors the jury weighs in determining whether or not to believe a witness’s trial testimony.

Here the jury chose to believe the victims. They had the opportunity to hear and consider all of the testimony, and defense counsel was able to effectively cross-examine the witnesses. Further, the major inconsistencies were detailed in the closing argument. The victims were quite consistent in their testimony as to what Vincent did to them. We have no reason to second-guess the credibility finding. The jury could have reasonably determined, based on all the evidence, that Vincent committed the offenses with which he was charged and that the young victims simply had trouble remembering some of the minor details of the incidents. Viewing the evidence in the light most favorable to the State, we find that a rational juror could have found that the State proved the essential elements of the crimes of oral sexual battery beyond a reasonable doubt, thus satisfying the Jackson standard.

This assignment of error is without merit.

Vincent also complains that the transcript of the trial record is so defective as to deprive him of his constitutional right of appeal. He contends that the omitted arguments of counsel during a hearing on the State’s Motion in Limine involved a crucial part of his defense, thereby causing him prejudice.

|inThe record reflects that, on March 29, 2005, the State filed a written Motion in Limine asking the trial court to prohibit the defense from introducing or eliciting inadmissible character evidence of the victims pursuant to LSA-C.E. art. 412. At the hearing on the motion on May 2, 2005, the transcript reveals that trial judge granted the State’s request to exclude testimony of the prior rape of one of the victims. The arguments of counsel were not transcribed. The trial judge commented that the rape shield statute was meant to protect a victim’s privacy and added that the fact that she was the victim in another case was irrelevant. Defense counsel noted his objection to the trial judge’s ruling.

On the first day of trial, defense counsel asked the trial judge to reconsider her prior ruling on the State’s Motion in Li-mine, arguing that evidence of the prior rape did not fall under LSA-C.E. art. 412. The argument was urged in connection with a separate defense motion, filed on the morning of trial, involving psychiatric treatment of M. In argument, the defense clearly stated that M was the rape victim and that psychiatric testimony related to that rape was related to a defense theory (M’s “unresolved anger” over the earlier incident). Counsel urged that it was extremely critical to the defense that it be allowed to introduce evidence of the prior rape, not because it involved sex, but because it involved violence. However, he responded negatively when asked if he had case law to support his position. The prosecutor countered that LSA-C.E. art. 412 was applicable to this situation. After these arguments of counsel, the trial judge denied the motion, apparently refusing to reconsider her earlier ruling.

Defense counsel’s argument regarding the Motion in Limine is contained in that portion of the record. Vincent’s motion for disclosure of M’s past psychiatric history also states that this information would have a direct bearing on her credibility. Thus, the record contains sufficient information for this Court toJj¿ascertain the defense’s argument and review the trial judge’s ruling had it been challenged on appeal. Omission of the prior argument is immaterial to an adequate review of this issue.

Vincent also contends that he was prejudiced because a bench conference held during defense counsel’s opening statement was missing from the record. Regarding the bench conference, the record reflects that the prosecutor, in his opening statement, told the jury that the incident with Vincent was F’s first sexual experience, and that M’s abuse started at the hands of Vincent in the summer of 2003. Defense counsel sought to counter the State’s assertion in his opening statement by telling the jury that this was not F’s first sexual experience. After the State objected, a bench conference was held but not transcribed. Following the bench conference, the trial judge admonished the jury by telling them that opening statements were not evidence and to disregard that the prosecutor said that this was F’s first sexual experience. She also stated that, until there was testimony from the witness stand, there was no evidence that this was or was not F’s first sexual experience.

Neither LSA-C.Cr.P. art. 843 nor La. Const, art. I, § 19 require recordation of bench conferences, and the Louisiana Supreme Court has not articulated such rule. Lack of recordation of arguments heard at the bench, alone, is not error. Rather, it is the court’s ability to review and the demonstration of prejudice that are at issue.

Here, the prosecutor stated his objection and the basis therefor prior to approaching the bench. Vincent’s trial counsel certainly has knowledge of his own arguments made at the bench. Had the ruling by the trial judge been challenged on appeal, we could review its correctness as the jury was admonished to disregard hp.any statements regarding F’s sexual experience. Vincent has failed to demonstrate any reasonable likelihood that he suffered prejudice resulting from the missing arguments.

Finally, Vincent argues that a letter from the court reporter dated March 30, 2007 advising the Appeals Department that the transcript had not been lodged supports his position that the transcript of the trial record is so defective that it deprived him of his constitutional right of appeal. The March BO, 2007 letter from the court reporter to the Twenty-Fourth Judicial District Court Appeals Department shows that the transcript dated March 29, 2005 was not lodged because it was “lost to Hurricane Katrina.” Defendant raises no issues on appeal that involve anything that occurred on March 29, 2005. There is no demonstration of any prejudice to Vincent.

This assignment of error is without merit.

In his third assignment of error, Vincent contends that his conviction should be reversed because the State’s rebuttal argument was improper, in that it shifted the burden of proof to the defense by arguing that Vincent had failed to prove the victims had lied.

The record reflects that defendant did not object to the prosecutor’s rebuttal argument at any time. LSA-C.Cr.P. art. 841(A) provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” There are limited, judicially created exceptions to the contemporaneous objection rule. Statements made during a prosecutor’s closing argument may be considered on appeal absent an objection at trial if the remarks made were “ ‘so extremely inflammatory and prejudicial’ ... that allowing the |13verdict to stand would ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ ”

The record indicates that the prosecutor did not make a closing argument, but rather, reserved his time for rebuttal. Therefore, defense counsel gave his closing argument first. In his closing argument, defense counsel pointed out the inconsistencies and contradictions in the testimony and on the videotape of M being interviewed at the Children’s Advocacy Center. Afterwards, the prosecutor presented his rebuttal argument. In his argument, the prosecutor remarked that the one “glaring” problem with Vincent’s case was that nobody came into the courtroom to provide a motive or reasons as to why M and F would lie about being sexually abused. The prosecutor argued that it was unlikely that two thirteen-year-old girls would fabricate such a conspiracy and then lie to their school counselors, parents, police officers, the Children’s Advocacy Center, Children’s Hospital, and the court for two years. He pointed out that there were many consistencies in M’s story, including the location of the incidents, the positions she arid' Vincent were in during the incidents, and the type of sex they engaged in. The prosecutor urged that children lie to get out of trouble, not to be “dragged” through the court system and forced to talk about the intimate details of their lives. He explained the inconsistencies in the testimony by stating that M and F were different people and, therefore, they had different perspectives on singular events. The prosecutor contended the jury would have to find that the victims conspired to make up the story.

The scope of closing argument shall be “confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, arid to the law applicable to the case. The argument shall not appeal to 114prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.” LSA-C.Cr.P. art. 774. Nevertheless, a conviction is not reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. Further, a prosecutor retains “considerable latitude” when making closing arguments.

In the present case, the defense pointed out during closing argument that there were inconsistencies and contradictions in the victims’ testimony, implying that the jury should not believe the victims because they were lying. The prosecutor’s argument in rebuttal, that no evidence was presented to show why the victims would have lied, was proper because it was in response to those remarks. The State did not shift the burden of proof; rather, it just pointed out that the victims told the truth.

This assignment of error is without merit.

Finally, Vincent argues that the trial court erred in denying his motion for new trial. He contends that, based on the totality of the circumstances — the defects in the transcript, the insufficient evidence, and the State’s improper rebuttal argument, the motion should have been granted. The combined effect of assignments of error, none of which warrant reversal, do not deprive a defendant of his right to a constitutionally fair trial. Because all of Vincent’s other assignments have been fully addressed herein, he presents nothing new for this Court to review by this assignment of error.

11fiOn error patent review, we find the transcript and the commitment are inconsistent. The transcript indicates that the trial judge sentenced Vincent to eight years in parish prison on both counts to run concurrently with each other, while the commitment reflects that the trial judge ordered the two sentences to run concurrently with each as well as with the sentences in case numbers 06-705 and 06-706. Because the transcript prevails, the case is remanded to the trial court in order for it to correct the commitment to conform to the transcript. The clerk of the district court is further ordered to transmit the original of the corrected commitment to the officer in charge of the institution to which Vincent has been sentenced. In addition, the trial judge failed to impose the sentences without benefit of parole, probation, or suspension of sentence pursuant to LSA-R.S. 14:43.3(0. However, no corrective action is necessary as the sentence is deemed to contain those restrictions. LSA-R.S. 15:301.1.

The record reflects that Vincent was given written notification of the sex offender registration requirements. However, LSA-R.S. 15:542.1 provides for an additional registration process for child predators, and Vincent fits the definition under LSA-R.S. 15:541(3). Therefore, the trial judge is ordered to provide written notice of both the general sex offender and the child predator registration provisions.

Accordingly, for the reasons assigned herein, we hereby affirm Vincent’s convictions. The case is remanded with instructions in keeping with this opinion.

CONVICTIONS AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . State v. Blank, 2004-0204 (La.4/11/07), 955 So.2d 90 (citing State v. Ford, 338 So.2d 107, 110 (La.1976)).

      . State v. Castlebeny, 1998-1388 (La.4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999).

      . Id.; State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583.

      . State v. Boatner, 2003-0485 (La.12/3/03), 861 So.2d 149 (La.2003).

      . State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062, writ denied, 00-0150 (La.6/30/00), 765 So.2d 1066; State v. Brown 01-41 (La.App. 5 Cir. 5/30/01), 788 So.2d 694.

      . Id.

      . Id.

      . State v. Brown, supra (citing State v. Juluke, 98-0341 (La. 1/8/99), 725 So.2d 1291).

      . State v. Hotoph, supra; State v. Brown, supra.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      . See, State v. Hoffman, 1998-3118 (La.4/11/00), 768 So.2d 542.

      . State v. Clark, 93-903 (La.App. 3 Cir. 3/16/94), 638 So.2d 225; also see, State v. Boatner, supra.

      . State v. Hayes, 364 So.2d 923 (La.1978); State v. Rochon, 98-717 (La.App. 5 Cir. 3/10/99), 733 So.2d 624.

      . Id.

      . State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764; State v. Jackson, 04-293 (La.App. 5 Cir. 7/27/04) 880 So.2d 69, writ denied, 2005-0232 (La.5/6/05), 901 So.2d 1094.

      . State v. Fernandez, supra.

      . See, e.g., State v. Ledet, 00-1103 (La.App. 5 Cir. 7/30/01), 792 So.2d 160, 176, writ denied, 01-2451 (La.9/30/02), 825 So.2d 1185.

      . State v. Rochon, 98-717 (La.App. 5 Cir. 3/10/99), 733 So.2d 624.


author: PARRO, J. GUIDRY, J.,

text:
    In the Matter of BELLE COMPANY, LLC. Type I and II Solid Waste Landfill, Proceedings Under the Louisiana Environmental Quality Act La. R.S. 30:2001 et seq. Belle Company, L.L.C. v. Dr. Michael McDaniel, Secretary of the Louisiana Department of Environmental Quality; and Dr. Chuck Carr Brown, Assistant Secretary of the Louisiana Department of Environmental Quality.
    Nos. 2006 CA 1077, 2006 CA 1078.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2007.
    Writ Denied March 24, 2008.

      Edwin W. Fleshman, Taylor, Porter, Brooks, & Phillips, Baton Rouge, LA, for Appellant Belle Company, L.L.C.
    Jackie M. Marve, Donald Trahan, Meredith H. Lieux, Roger K. Ward, Baton Rouge, LA, for Appellee Louisiana Department of Environmental Quality.
    Adam Babich, Corrinne Van Dalen, New Orleans, LA, for Appellee Assumption Parish People’s Environmental Action League.
    James P. Dore, Alan J. Berteau, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, LLP, Baton Rouge, LA, for Appellee Assumption Parish Police Jury.
    Before PARRO, KUHN, GUIDRY, DOWNING, and HUGHES JJ.
   PARRO, J.

|?An applicant for a solid waste disposal permit appeals from the portion of a district court judgment that ’ denied its petition for a writ of mandamus. The applicant sought to have the Louisiana Department of Environmental Quality render a decision on its pending application. For the following reasons, that portion of the judgment is reversed, judgment is rendered in favor of the applicant, and this matter is remanded to the district court with instructions.

Factual Background and Procedural History

In 1994, Belle Company, L.L.C. (Belle) filed an application with the Louisiana Department of Environmental Quality (DEQ) for a permit to construct and operate a non-hazardous solid waste disposal facility in Assumption Parish. On August 15, 1997, DEQ issued a permit to Belle for the construction and operation of a Type I and Type II non-hazardous solid waste landfill. On September 26, 1997, Assumption Parish People’s Environmental Action League (APPEAL) filed a petition for review with the district court, naming DEQ as a defendant. In its petition, APPEAL raised nine assignments of error aimed primarily at the issue of whether DEQ had satisfied its duty as public trustee in issuing Belle’s permit. Belle intervened in the district court proceeding. In response to allegations in APPEAL’S petition for review and a September 4,. 1997 letter by G & E Engineering Environmental Consultants concerning Belle’s preparations to meet the emergency response requirements of LSA-R.S. 30:2157, DEQ modified the permit on September 30, 1997, to include the following two additional conditions:

12A. Certifications required under LA R.S. 30:2157 from the local fire department, emergency medical services and hospital shall be obtained or the closest fire department, emergency medical service, and hospital that can provide the required services shall be identified pri- or to commencement of operation of the facility; or
B. To comply with Section 472 of the Life Safety Code of the NFPA (§ 2157[D]).

After considering the administrative record, briefs, and arguments, the district court concluded that DEQ had satisfied its duties as the public trustee in issuing Belle’s permit; however, it determined that DEQ had erred in granting a permit to Belle without prior compliance with LSA-R.S. 30:2157. By judgment dated September 14, |s1998, DEQ’s decision to issue a permit was reversed by the district court, and the matter was remanded to DEQ for further proceedings on the issue of compliance with LSA-R.S. 30:2157.

APPEAL appealed to this court, contending that the district court had erred in rejecting its claim that (1) DEQ had violated its constitutional duty as protector of the environment, (2) DEQ had failed to make the capacity determination required by LSA-R.S. 30:2179 prior to the issuance of the permit, and (3) Belle’s alternative site study was insufficient. Belle filed an answer to the appeal, challenging the district court’s finding that it had failed to comply with the requirements of LSA-R.S. 30:2157. In re Belle Co., L.L.C., 00-0504 (La.App. 1st Cir.6/27/01), 809 So.2d 225, 243.

This court concluded that DEQ’s decision was supported by its factual findings and its articulation of a rational connection between the facts found and the permit issued. In this respect, DEQ was found to have performed its duty as protector of the environment, and APPEAL’S assignments of error were found to lack merit. In re Belle Co., L.L.C., 809 So.2d at 239 and 242.

In connection with Belle’s answer, this court concluded that, in ■ determining whether the permit should be issued, DEQ was required to decide whether the applicant for a permit for a solid waste disposal facility had satisfied the requirements of LSA-R.S. 30:2157(A), (B), and (C) or whether the applicant had shown that it had the ability, on its own, to meet the necessary response requirements. See LSA-R.S. 30:2157(D). Therefore, DEQ, in requiring as a condition of the permit that Belle' merely comply with the requirements of Section 2157 before the landfill became “operational,” violated the provisions of this statute. Since the record revealed that these statutory requirements were not complied with prior to the issuance of the permit, we found no error in the district court’s reversal of DEQ’s decision to grant the permit prior to compliance with Section 2157. We further found no error in the district court’s remand of this matter for further proceedings on the issue of compliance with the emergency response statute. In re Belle Co., L.L.C., 809 So.2d at 245.

pPursuant to our affirmance of the district court’s judgment, Belle proceeded back before DEQ, presumably to show compliance with Section 2157. In December 2001, Belle submitted an update of its revised emergency response plan, a comprehensive contingency plan for hazardous materials emergencies that had been submitted to DEQ on March 2, 2000. Public hearings were subsequently held on the revised contingency plan for hazardous materials emergencies. Meanwhile, DEQ requested that Belle update and supplement some of the data contained in its application that was unrelated to the emergency response issue. On June 29, 2005, a notice of deficiency was issued, which contained a request for Belle to provide, among other things, a wetlands determination pursuant to LAC 33:VII.521(A)(l)(e)(ii), a wetlands demonstration pursuant to LAC 33:VII.521(A)(l)(f), if applicable, and documentation that the proposed landfill did not violate existing land-use requirements pursuant to LAC 33:VII.519(N).

Upon inquiry from Belle, DEQ informed Belle by letter dated September 20, 2005, that the Water and Waste Permits Division had discontinued review of its permit application pending receipt by DEQ of the wetlands determination, the wetlands demonstration, if applicable, and proper documentation from the local governing body that the proposed use did not violate existing land-use requirements. With DEQ having formally refused to continue its review of Belle’s permit application on the basis of incompleteness, Belle filed on September 22, 2005, a petition for a writ of mandamus.

In its petition, Belle alleged the following. Upon its submission of the completed emergency response information required by LSA-R.S. 30:2157, DEQ should have granted it a permit as its permit application was deemed complete for purposes of the remand. In making additional requests not related to the emergency response issue, DEQ went beyond the scope of the remand and reopened the entire permit application for review. Belle urged that pursuant to the applicable version of LAC 33:1.1505(0, Rthe secretary of DEQ had a mandatory, non-discretionary duty to review and ultimately approve or disapprove a permit application within 410 days of its submittal. The deadline for a final decision may not be extended for more than 45 days, and then only in enumerated circumstances. Considering that more than 1,600 days had elapsed since Belle had fulfilled its emergency response requirements under LSA-R.S. 30:2157, Belle sought to have a writ of mandamus issued due to DEQ’s failure to perform a ministerial duty required by law. Specifically, Belle sought to have a writ of mandamus issued to DEQ’s secretary and assistant secretary, directing them to immediately grant Belle’s request for a solid waste disposal permit or to show cause to the contrary.

DEQ filed an exception raising the objections of lack of subject matter jurisdiction, no cause of action, nonjoinder of a party, and improper cumulation of actions. In its exception, DEQ alleged that Belle’s application had become stale and/or incomplete due to the passage of time and the resulting change of circumstances; therefore, it was necessary for the application to be reviewed anew, particularly because of the existing regulatory deficiencies in the Belle permit application. In its subsequently filed answer, DEQ urged that the matter before the court was inappropriate for a writ of mandamus due to the discretionary nature of its duty in connection with its decision on the issuance of a permit.

The Assumption Parish Police Jury filed a petition of intervention urging that DEQ should be permitted to complete its review and determination with regard to Belle’s permit application. Therefore, it sought to have Belle’s petition for a writ of mandamus dismissed.

In connection with the hearing on these matters, DEQ asserted that it had the discretion to determine when the statutory time periods under LSA-R.S. 30:2022(B) begin to run by deciding when an application was complete. Pursuant to the stipulation of all parties, the matter was tried by summary trial. See LSA-C.C.P. arts. 3781 and 3784. At the hearing, Belle urged that the permit application was complete in 1997 IfiWhen it was granted. On review pursuant to APPEAL’S petition for review, the district court found one problem. Belle submitted that this problem was corrected by Belle by December 2001. In light of the district court’s reversal of DEQ’s issuance of the permit, DEQ urged that it was free to review Belle’s entire application and make an independent determination.

At the conclusion of the hearing on Belle’s petition for a writ of mandamus, the district court recognized the discretion afforded to DEQ in determining whether to issue a permit. In light of this discretion, the district court found that a:writ of mandamus was inappropriate. Nonetheless, the district court recognized that Belle was entitled to have DEQ act on its permit in a timely manner once Belle complied with DEQ’s request. Accordingly, on December 15, 2005, the district court denied Belle’s petition for a writ of mandamus, and DEQ was ordered to issue a permit decision on Belle’s solid waste permit application within five days of its receipt from Belle of a wetlands documentation, a wetlands demonstration, if applicable, and documentation that the .proposed use did not violate existing land-use requirements. In so holding, Belle maintained that the district court allowed DEQ to extend its review beyond the parameters authorized by the remand.

On December 28, 2005, Belle filed a motion for new trial on peremptory and discretionary grounds, seeking to offer evidence to refute DEQ’s position that Belle’s application was not technically complete and urging that the district court had legally erred in its interpretation of LSA-R.S. 30:2022(B). In its motion, Belle urged that DEQ’s regulations dictate that a permit application not be put out for public comment until it is technically complete. At the hearing on the motion for new trial, Belle conceded that DEQ has discretion in deciding whether a permit should be granted. However, Belle maintained that such discretion must be exercised within the time constraints imposed by LSA-R.S. 30:2022(B), that is, within 410 days from the time the application is submitted. Although the district court did not feel that it needed witness testimony as to the completeness of Belle’s application, it allowed Belle the opportunity to proffer |7sueh evidence at the hearing on its motion for a new trial. Belle also supposedly introduced a copy of the emergency response plan that it had submitted to DEQ and the revised contingency plan for hazardous materials emergencies that was submitted to DEQ in December 2001. After being taken under advisement, the motion was denied on the basis that no peremptory or discretionary grounds existed.

Subsequently, Belle filed a motion for appeal from the district court’s judgments denying its petition for mandamus and denying its request for a new trial. On appeal, Belle urges that the district court erred in denying its petition for a writ of mandamus in the following respects:

1. by not ordering DEQ to make a decision on Belle’s permit application,
2. by not allowing Belle to present evidence to show that DEQ had previously concluded that Belle’s permit application was technically complete and that DEQ was satisfied with the revised emergency response plan, and
3.by not ordering DEQ to re-issue a permit to Belle since the remand of this case to that agency was limited to correction of a single deficiency, which was subsequently remedied to DEQ’s satisfaction.

Mandamus

In general, LSA-C.C.P. art. 3863 provides, in pertinent part, that a writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. However, as indicated in LSA-C.C.P. art. 3862, use of this extraordinary remedy is limited to situations where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. The remedy is not available to command the performance of an act that contains any element of discretion, however slight. Allen v. St. Tammany Parish Police Jury, 96-0938 (La.App. 1st Cir.2/14/97), 690 So.2d 150, 153, unit denied, 97-0599 (La.4/18/97), 692 So.2d 455. Further, mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty that ought to be performed. It never issues in doubtful cases. Wiginton v. Tangipahoa Parish Council, 00-1319 (La.App. 1st Cir.6/29/01), 790 So.2d 160, 163, writ denied, 01-2541 (La.12/7/01), 803 So.2d 971.

|sBeIle does not dispute that DEQ had discretion in determining whether a permit should be issued to it. Nonetheless, Belle contends that LSA-R.S. 30:2022(B) provides time delays during which DEQ must perform its duties. Belle urged that these time delays have expired in connection with the remand to DEQ and that DEQ had no discretion concerning whether to make a decision, and thus the issuance of a writ of mandamus is appropriate. See LSA-R.S. 30:2050.29. In light of Belle’s argument, we examine the applicable law to determine whether the district court’s action was proper in denying Belle’s petition for a writ of mandamus.

Time Limitations of LSA-R.S. 30:2022(B)

The time constraints for DEQ’s administrative completeness review of a permit application are found in LSA-R.S. 30:2022(B), which at all pertinent times provided:

No later than April 20, 1991, the secretary, shall promulgate rules and regulations establishing procedures for the processing and review of permit applications for new facilities and applications for substantial permit modifications, including but not limited to administrative completeness reviews, checklists of required information, and maximum processing times, and which shall specify:
(1) Procedures for completeness review to determine whether an application contains the information required to substantively review the application. The completeness review procedure shall not extend beyond one hundred ten days from the date the application is submitted.
(2) The final decision shall not extend beyond four hundred ten days from the date the application is submitted, except where additional time is required for the applicant to revise or supplement technical deficiencies in the application, or for adjudicatory or judicial proceedings under R.S. 30:2024, or for consideration of comments received at a public hearing in the case of an extraordinary public response, however in no case shall the extension exceed forty-five days.
(3) Applications undergoing technical review shall not be subject to rule changes which occur during the technical review unless such changes are made in accordance with R.S. 49:953(B)(1) or are required by federal law or regulation to be incorporated prior to permit issuance. However, such a rule change made prior to the issuance of the permit may constitute grounds for a modification of the final permit.
(4) The deadlines established by this Section may be extended upon mutual agreement of the secretary and the applicant.

The applicable version of Subsection B was adopted by the legislature in 1990 by 19La. Acts, No. 686, § l. Act 686 was expressly enacted to provide for deadlines in connection with DEQ’s consideration of a permit application. The legislature chose to specifically set forth a time delay during which DEQ had to perform its administrative completeness review and to render its final decision rather than allowing such matters to be determined solely by regulatory guidelines.

Based on the language of Subsection B of the applicable version of Section 2022, Belle urged that DEQ had at most 110 days to decide whether its December 2001 submission of its revised application pursuant to the remand was technically complete and had no more than a total of 410 days from the December 2001 submission date to grant or deny its pending permit application. According to Belle, the statute allowed for at most a 45-day extension. As of September 20, 2005, DEQ still had not made a decision in the remanded matter. Therefore, Belle urged that the district court erred in affording DEQ unlimited time to decide when a permit application is complete.

The time limitations imposed by LSA-R.S. 30:2022(B)(1) and (2) relate to the date the application was submitted. Clearly, from the date of submission after the remand, DEQ had 110 days to perform its completeness review and 410 days to render a final decision. An extension of the 110-day period was not authorized by LSA-R.S. 30:2022(B)(1). This period could be extended only with the mutual consent of DEQ’s secretary and Belle. See LSA-R.S. 30:2022(B)(4). Thus, absent mutual consent, DEQ was bound by law to make its administrative completeness review within 110 days of submission. Although DEQ had authority to extend the 410-day period for rendering a final decision, DEQ was only authorized to do so when additional time was required (1) for the applicant to revise or supplement technical deficiencies in the application, (2) for adjudicatory or judicial proceedings under LSA-R.S. 30:2024, or (3) for consideration of comments received at a public hearing in the case of an extraordinary public response. However, in no case was the extension of the 410-day period to exceed 45 days, unless otherwise consented to by DEQ’s secretary and Belle. See LSA-R.S. 1 iq30:2Q22(B)(2) and (4). On appeal, DEQ argued that Belle acquiesced in the extension of these deadlines by its August 22 and 26, 2005 responses to the notice of deficiencies. Under the facts of this case, we do not find that Belle’s actions constituted the consent necessary for a finding of mutual consent relative to the extension of these statutory guidelines.

Clearly, this statute did not afford DEQ unlimited time during which to decide if a permit application is complete. Furthermore, the commencement of the running of the 410-day period was not contingent on a determination by DEQ that the appiieation lnwas technically complete as urged by DEQ. We agree with Belle that the deadline for making the ultimate permit decision, like the deadline for deciding administrative completeness, runs from the date of submission of the permit application. Obviously, the legislature enacted this statute to protect applicants from endless delays.

Accordingly, DEQ had at most 110 days to perform its administrative completeness review and 455 days to render a final decision relative to Belle’s permit application. On remand to DEQ, Belle admittedly submitted revised data in December 2001 that was pertinent to the issue of its compliance with LSA-R.S. 30:2157. Belle’s action in this regard was tantamount to a resubmission of its application for purposes of the remand. Afterwards, DEQ would have only had 110 days from the date in December 2001 on which the revised emergency response plan was presented to determine the completeness of the application and at most 455 days from that same date to render a final decision on its permit application. We thus conclude that DEQ’s deadline for'rendering a final decision on remand would have long since passed by September 20, 2005, when DEQ notified Belle that it had discontinued review of the permit application.

Since DEQ’s secretary failed to render a final decision within the deadline set forth in LSA-R.S. 30:2022(B), Belle acted properly in filing a petition for a writ of mandamus. See LSA-R.S. 30:2050.29. Furthermore, the district court erred in denying Belle’s petition for a writ of mandamus. Under LSA-R.S. 30:2050.29, Belle was entitled' to the issuance of a writ of mandamus from the Nineteenth Judicial District Court for the parish of East Baton Rouge, directing the secretary or authorized assistant secretary to act within a specified period of time.

Action by DEQ

Only one of APPEAL’S many oppositions to DEQ’s issuance of Belle’s permit were found by the district court in the petition for review to have merit, that is, the lack of prior compliance with LSA-R.S. 30:2157. In re Belle Co., L.L.C., 809 So.2d at 234. This deficiency alone was the basis for the district court’s reversal of DEQ’s decision to issue |12the permit ánd for this court’s affirmance of the judgment of the district court. The district court has the authority to remand a case to DEQ for further proceedings. See LSA-R.S. 30:2050.21(F) and 49:964(G). The order of remand by the district court in this case directed that further proceedings be conducted on the issue of Belle’s compliance with the emergency response statute. See In re Belle Co., L.L.C., 809 So.2d at 245. It did not authorize reconsideration of Belle’s entire permit application. Accordingly, on remand of this matter, DEQ did not have authority under the guise of its duty as the primary public trustee of the environment to consider issues other than the one for which the case was remanded. See City of Shreveport v. Kansas City Southern Railway Co., 193 La. 277, 190 So. 404, 405 (1939), cert. denied, 308 U.S. 621, 60 S.Ct. 298, 84 L.Ed. 519 (1939); MTU of North America, Inc. v. Raven Marine, Inc., 499 So.2d 289, 291 (La.App. 1st Cir.1986), writs denied, 501 So.2d 773 and 776 (La.1987). The district court’s judgment to the contrary is legally incorrect.

Decree

For the foregoing reasons, that portion of the judgment of the district court that denied Belle’s petition for a writ of mandamus is reversed. We remand this matter to the district court and order the court to issue a writ of mandamus in favor of Belle, directing the secretary or authorized assistant secretary of the Louisiana Department of Environmental Quality to render a final decision consistent with this appeal on Belle’s application within 30 days of the finality of this opinion. Costs of this appeal in the amount of $1,362.26 are assessed to the Louisiana Department of Environmental Quality.

REVERSED, RENDERED, AND REMANDED WITH INSTRUCTIONS.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

hi respectfully disagree with the majority’s determination that DEQ failed to act on Belle’s permit application within the time limits prescribed by La. R.S. 30:2022(B)(2), and that Belle is entitled to the issuance of a writ of mandamus ordering DEQ to render a final decision on Belle’s permit application.

Louisiana Revised Statute 30:2022(B)(2) was amended by La. Acts 2006, No. 117 § 1. The provision, as amended, provides:

The final decision shall not extend beyond three hundred days from the date the application is submitted, except where additional time is required for the applicant to revise or supplement technical information or deficiencies in the application, or for adjudicatory or | ¡judicial proceedings under La. R.S. 30:2024, or for required review by the United States Environmental Protection Agency, or for consideration of comments received at a public hearing in the case of an extraordinary public response, however in no case shall the extension for consideration of comments exceed forty-five days.

According to La. R.S. 30:2022(B)(2), as amended, the time period within which DEQ has to issue a final decision on a permit application is shortened from 410 days to 300 days. Further, the amended provision permits an extension of this time period when the applicant is required to revise or supplement technical information or deficiencies in the application. Finally, the amended provision clarifies that an extension of the time period within which DEQ has to issue a final decision is limited to 45 days only when the consideration of comments from a public hearing is involved.

While this amendment occurred after Belle submitted its permit application in the instant case, DEQ asserts that the amendment to La. R.S. 30:2022(B)(2) represents a change in a procedural law, and therefore, applies retroactively to the instant permit appiication. As such, DEQ asserts that because Belle failed to supplement its application with requested documentation regarding a wetlands determination and land use requirements, the time period under La. R.S'. 30:2022(B)(2) has not expired, and accordingly, it is not required to issue a final decision until such time as Belle submits the requested documentation.

Louisiana Civil Code article 6 provides that “In the absence of contrary legislative expression, substantive laws apply prospectively only[; procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

1 ¡Article 6 requires a two-fold inquiry: (1) did the legislature express its intent regarding retrospective or prospective application, and (2) if not, is the law substantive, procedural, or interpretative. Cheron, 02-1049 at p. 11, 872 So.2d at 1101. In the instant case, the legislature did not make any clear expression regarding its intent concerning the retroactive application of Act 117. Therefore, in order to determine if Act 117 can be applied retroactively to the instant permit application, the law must be classified as substantive, procedural, or interpretative.

Substantive laws establish new rules, rights, and duties or change existing ones. Procedural laws prescribe a method (remedy) for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Interpretative laws merely establish the meaning the interpreted law had from the time of its enactment. Wooley v. AmCare Health Plans of Louisiana, Inc., 05-2025, p. 7 (La.App. 1st Cir.10/25/06), 944 So.2d 668, 672-673.

In the instant case, Act 117 changed and clarified the time within which DEQ has to issue’ a final decision on a permit application, thereby delineating the method by which an applicant may enforce its substantive right. However, the substantive right of the applicant, Belle, to apply for a permit for a Type I and II solid waste disposal facility did not change. Accordingly, after reviewing the prior and amended statute, it is clear that the law is procedural in nature, and therefore, should apply retroactively to the instant permit application. See In Re: Belle Company, L.L.C. Type I and II Solid Waste Landfill Permit, 00-0504 (La.App. 1st Cir.6/27/01), 809 So.2d 225 (wherein this court determined with reference to the' same permit application that La. R.S. 30:2157, which requires an applicant to obtain certification from local emergency response officials regarding their ability |4to meet emergency response requirements, was procedural and applied retroactively to Belle’s permit application.)

Because an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision, and retroactive application of Act 117 is permissible as outlined above, La. R.S. 30:2022(B)(2), as amended, should be applied to the instant appeal. See Segura v. Frank, 93-1271, pp. 9-12 (La.1/14/94), 630 So.2d 714, 725.

Once La. R.S. 30:2022(B)(2), as amended, is applied to the instant appeal, it is clear that Belle is not entitled to the issuance of a mandamus. Because Belle failed to supplement its permit application with the requested technical information regarding a wetlands determination and land use requirements, the time limit within which DEQ was required to issue a final permit decision was extended and remained pending until Belle submitted the requested information.

Belle asserts that the additional information requested by DEQ was outside the scope of the remand from this court, which was presumably limited to consideration of emergency response requirements. However, this argument is misplaced. Despite our previous affirmance of the district court’s decision to remand this matter to DEQ, the judiciary is prohibited under the doctrine of separation of powers from infringing upon the inherent powers of the executive branch. See Hoag v. State, 04-0857, p. 4 (La.12/1/04), 889 So.2d 1019, 1022. The decision to issue a permit for a type I and II solid waste disposal facility lies Dsquarely within the province and discretion of DEQ, as mandated by the public trust doctrine in La. Const. Art. IX, § 1. See also Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152 (La.1984). Further, La. R.S. 30:2014 and 2018 reiterate that DEQ is the primary public trustee of the environment and shall consider and follow the intent and will of the Constitution of Louisiana and Louisiana statutory law in making any determination relative to the granting or denying of permits. Therefore, any attempt by the judiciary to limit the scope of DEQ’s review of a permit application would impermissibly infringe on DEQ’s constitutional mandate to act as public trustee in making any determination relative to the granting or denying of permits. As such, DEQ was constitutionally and statutorily permitted to review Belle’s application in its entirety on remand and to require Belle to provide additional documentation.

Therefore, for the foregoing reasons, I respectfully dissent from the majority’s decision, ordering the district court to issue a writ of mandamus in favor of Belle.

      . APPEAL also contended that the district court erred in allowing Belle to supplement the administrative record with DEQ’s "Supplement To the Basis for Decision."

      . This fact is conceded by DEQ in its answer to Belle’s petition for a writ of mandamus.

      . Belle also filed a separate lawsuit (Docket No. 536,648) in the event filing of a petition for mandamus in the existing lawsuit was not proper. These matters were consolidated.

      .In July 2007, DEQ amended Title 33, Part I, Chapter 15 of the Louisiana Administrative Code. The 2007 amendments are inapplicable to Belle’s permit application. See LAC 33:1.1501 (2007).

      . In this pleading, DEQ conceded that in March 2000, Belle.had submitted emergency response information pursuant to LSA-R.S. 30:2157 and in December 2001, Belle submitted an update of this information. According to DEQ, a public hearing was held on the emergency response information submitted by Belle in April 2002 and again in November 2004.

      . On the same date, the court in a separate judgment granted Belle’s motion to consolidate and denied the exceptions filed by DEQ.

      . This evidence is not included in the appellate record.

      . After the district court's hearing on Belle’s petition for a writ of mandamus, LSA-R.S. 30:2022(B) was amended by 2006 La. Acts, No. 117, § 1, effective June 2, 2006. Unless otherwise stated, all references to this section will be to the version in effect when the application was filed by Belle and at the time of the hearing in this matter.

      . Prior to that time, former LSA-R.S. 30:1070 governed the procedure pertaining to permit applications, variance requests, and notification.

      .The purpose of this review is to determine if the application contains the information required to substantively review the application. LSA-R.S. 30:2022(B)(1).

      . A request for an extension of deadlines relating to the completeness review, technical review, and final decision is governed by LAC 33:I.1505(E), which provides:
      Any deadline established by this Section may be extended. A request for an extension of any deadline shall be submitted in writing by the permit applicant or by the secretary or his designee. The request shall specify the reasons and any special conditions that support a deadline extension. Written responses to all extension requests shall be submitted to the requestor within 10 days of receipt of the request.
      The record is devoid of any such request by Belle or DEQ.

      . DEQ’s duty to perform an administrative review for completeness was further governed by LAC 33:1.1505(A), which, prior to the July 2007 amendments, provided:
      Completeness Review
      1. Within 60 days after submittal of a permit application for new facilities or an application for substantial permit modifications, the department shall perform a completeness review and submit written notification to the applicant that lists the application's specific deficiencies. Permit application forms and checklists of required information in the permit application review process shall be provided to the applicant upon request.
      2. The applicant shall respond to the notice of deficiency within 30 days after receipt of the notice of deficiency. This response shall contain all of the information required by the department to proceed with processing the application, unless otherwise provided for under LAC 33:I.1505.E.
      3. Within 110 days from the date a permit application is submitted, the department shall:

        a. issue a letter of completeness; or
      b. issue a notice of intent to deny the permit based on an incomplete application.
      4.Within 30 days after receipt of a letter of completeness, the applicant shall publish a notice, provided by the department, of the completeness determination in a major local newspaper of general circulation and submit proof of publication to the Office of Environmental Services, Air Permits Division or Water and Waste Permits Division.
      5. The requirement for publication of notice of completeness may be waived for applications for air quality permits for sources not defined as major in LAC 33:111.504, 509, or 5103.
      6. The requirement for publication of notice of completeness may be waived for water quality permits for sources defined as minor by the administrative authority.

      . In so stating, we render no opinion as to the applicability of the conditions for a 45-day extension under the facts of this case.

      . See LSA-R.S. 30:2014(A)(4).

      . Although La. R.S. 1:2 does not distinguish between substantive, procedural, and interpretative laws in its directive that no "section of the Revised Statutes is retroactive unless it is expressly so stated,” this statute has been limited to apply only to substantive legislation. Cheron v. LCS Corrections Services, Inc., 02-1049, pp. 10-11 (La.App. 1st Cir.2/23/04), 872 So.2d 1094, 1101, aff’d 04-0703 (La. 1/19/05), 891 So.2d 1250.

      . Alternatively, even if La. R.S. 30:2022(B)(2), as amended, did not apply to the instant permit application, Belle would still not be entitled to the issuance of a mandamus. Mandamus, as codified in La. C.C.P. art. 3862, is an extraordinary remedy, to be applied only where the action sought to be performed is purely ministerial in nature, leaving nothing to discretion. Hoag, 04-0857 at p. 6, 889 So.2d at 1023. The critical element necessary for the issuance of a mandamus is that the public official to whom the writ is directed may exercise no element of discretion when complying. DEQ is clearly afforded discretion in granting or denying a permit and in deciding if the application is complete or requires revision or supplementation. Accordingly, the issuance of a mandamus is inappropriate under the circumstances of this case.