Responding to your fix...
Sorry typo. I've fixed it.
...There is no argument, a 3-wire MWBC cannot have both circuits on the same "phase" due to the potential to overload the neutral. It doesn't matter how it was wired before you changed the panel. Just like saying to the inspector "well the old fuse panel had 30 amp fuses on all of the #14 and #12 AWG circuits so I just put the circuits back on 30 amps breakers".
I
near absolutely agree. This is a potentially dangerous circumstance that should be corrected.
However, I'm not aware of anything in the NEC or Local Requirements that explicitly require he change this as part of a panel upgrade (i.e. merit inspection failure if not completed). *Pouts* "Existing is existing."
We're entering murky water here because it follows by the same logic that, anything after the OCPD, at least in terms of branch circuits, would then fall under the purview of a panel upgrade. Meaning we would be liable for not checking the
entirety of not just one existing branch circuit, but
all existing branch circuits, during a panel upgrade.
The only way I can see a panel upgrade explicitly meriting failure here are:
(1) If qualified as an MWBC
(see next two, italicized paragraphs), the OCPD's would have to be correct as part of a panel upgrade per 240, which would trigger simultaneous disconnect requirements, thus requiring him to install the breakers on opposite phases by utilizing an OCPD w/ the proper disconnect requirements.
However, as @electrofelon pointed out, an MWBC by definition requires a voltage the two legs.
I'm not sure this would qualify as an MWBC...
Perhaps a dumb question, but what would you measure between two points of the same phase?
My initial reaction is 0 volts. But then I envision it as essentially cutting a single phase hot leg and measuring between the two points, which would certainly measure a voltage, I think.... There's also the idea of voltage / time and that you might still get a trickling of a reading.
If NOT qualified as an MWBC, the only thing explicitly required of him is sizing the breakers properly per 240, as part of a panel upgrade.
Could this pose a problem w/ the neutral? Absolutely, yes. Should it be corrected? Absolutely, yes.
But the load of a circuit is very specifically calculated, not represented by the figure on the breaker handle (as I'm sure you know), so there's no proof that it
will overload the neutral, barring a quantitative analysis of the two circuits.
This would have to be separately addressed. Could the municipality levy something separate against the owner? I believe so, yes.
But
fail a panel upgrade, explicitly substantiated by the NEC (other than simultaneous breaker disconnects),?? I'm not so sure... and again, murky water.
Other than all of the above, there's the blanket authority of the AHJ, where if the inspector notices something that he/she considers to be a high degree of danger, the have certain blanket powers they can utilize.