Former Upper Big Branch section boss Richard “Smurf” Hutchens leaves the federal courthouse this afternoon for a lunch break from testifying in the criminal trial of former Massey Energy CEO Don Blankenship. Photo by Joel Ebert.

Defense lawyer Bill Taylor appeared to be laying the groundwork for controversial parts of former Massey Energy CEO Don Blankenship’s defense this morning during his cross-examination of former Upper Big Branch Mine section boss Richard “Smurf” Hutchens.

Under questioning from Taylor, Hutchens agreed that the way citations are issued by the U.S. Mine Safety and Health Administration can be inconsistent — that one inspector might write up a particular issue as a violation, while a different inspector might not. Taylor also got Hutchens to agree that MSHA had cited the Upper Big Branch Mine for making a ventilation change without agency approval, even though the change could have resulted in more fresh-air flow in parts of the UBB mine.

Defense attorneys have been hoping to make Blankenship’s personal beefs with the way MSHA regulated ventilation at the Upper Big Branch Mine part of their defense, but an earlier ruling by U.S. District Judge Irene Berger was supposed to keep that sort of argument out of the case.

Court broke for lunch shortly before noon, when Taylor asked for an early recess so the defense could research an issue before completing its cross-examination of Hutchens.